Legal Advocacy Program

With respect to appellate litigation, the IMLA Legal Advocacy Program serves IMLA members and their governmental clients as an evaluation center, as an information outlet and in some cases as an amicus in litigation considered to have a significant impact on a substantial number of local governments on a national basis. IMLA is the service organization of primary resort for its members in all cases in which a party to a case before the United States Supreme Court is represented by an IMLA member. The issues in these lawsuits range from the constitutional allocation of power between state and local governments and the federal government to challenges to the regulatory authority of governments based on civil and individual rights. IMLA files briefs before the Supreme Court at both the merits and petition stage and in some cases that have enough national importance, IMLA will file an amicus brief in both federal and state appellate courts. For details about cases in which IMLA has participated as an amicus, click on the tabs below.

If you want to contact IMLA about possible participation in your case, contact IMLA’s Director of Legal Advocacy, Amanda Kellar at This email address is being protected from spambots. You need JavaScript enabled to view it. or 202-466-5424 x7116.


Current Supreme Court Merits Cases

Filed ____, 2017 (Supreme Court Merits)
City of Hays v. Vogt
No. 16-1495
Pro Bono Author:

Matthew Vogt worked as a police officer for the City of Hays. In an interview with a different city, Vogt disclosed he had kept a knife he obtained in the course of his work as a Hays police officer. The new city offered Vogt the job on the condition that he tell the City of Hays about the knife and return it. Vogt did so. The Hays police chief told Vogt to write a report about the knife, and Vogt wrote a vague one-sentence statement. The Hays police chief then told Vogt to write a more detailed statement or he would be fired. That statement was used to locate more evidence and Hays was charged with two felonies related to possessing the knife.

Vogt alleges that, at the probable cause hearing, his statements about the knife and the resulting information were “used against him.” Charges were ultimately dismissed at the probable cause hearing and Vogt was never prosecuted for the crimes.

Vogt brought a Section 1983 claim against both cities and four police officers, claiming that they violated his Fifth Amendment rights. Specifically, he alleged that: (1) by threatening to terminate his employment if he did not provide additional statements about the knife, the defendants compelled him to make incriminating statements; and (2) those statements were used against him in a criminal case when they were used at the probable cause hearing.

By way of background, Garrity v. New Jersey, 385 U.S. 493, 500 (1967) held that statements “obtained under threat of removal from office” are compelled statements for purposes of the Self-Incrimination Clause.

The Tenth Circuit held, in conflict with a number of other circuits, that the Fifth Amendment is violated when compelled self-incriminating statements are used at a probable cause hearing and thus, Vogt could proceed with his claims against the City of Hays. The Tenth Circuit found that the officers were entitled to qualified immunity as the law was not clearly established and also dismissed the claim against the other city that had made a conditional offer of employment.

The Fifth Amendment states that no person shall be “compelled in any criminal case to be a witness against himself.” The question in this case is what does criminal case mean? Specifically, the question presented is whether the Fifth Amendment is violated when statements are used at a probable cause hearing, but not at a criminal trial.


Filed ____, 2017 (Supreme Court Merits)
Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission
No. 16-111
Pro Bono Author: Bruce LaPierre

In July 2012, a same-sex couple visited Masterpiece Cakeshop, a bakery in Colorado open to the public, and requested that the owner create a cake for their wedding. The owner declined, telling them that he does not create wedding cakes for same-sex weddings because of his religious beliefs. He offered to sell them other baked goods in his store and the couple left without purchasing anything.

The couple filed a complaint alleging that Masterpiece had discriminated against them in a place of public accommodation because of their sexual orientation in violation of Colorado’s public accommodation law, which includes sexual orientation as a protected class.

Masterpiece argued that requiring it to create a wedding cake violates its rights to freedom of speech and the free exercise of religion. Masterpiece also argued that its refusal to create a wedding cake for the couple was not “because of” their sexual orientation, rather it claimed its refusal to create the cake was “because of” its opposition to same-sex marriage (based on its religious beliefs).

The Colorado Court of Appeals rejected this argument, concluding it was a distinction without a difference. The court noted that distinguishing between a person’s status and conduct closely correlated with that status is inappropriate in the context of discrimination. Further, the court concluded that merely requiring that Masterpiece not to discriminate against potential customers consistent with the public accommodation statute, even if compelled by the government, is not sufficiently expressive to warrant First Amendment speech protections. Regarding the religious expression claim, the court concluded that the statute was a neutral law of general applicability; it was not requiring Masterpiece to support or endorse a particular religion, but rather the law merely prohibited Masterpiece from discriminating against a potential customer on account of a protected status. The Colorado Court of Appeals applied rational basis to Colorado’s law and “we easily conclude that it is rationally related to Colorado’s interest in eliminating discrimination in places of public accommodation.”

The issue before the Supreme Court is whether applying Colorado's public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.


Filed September 5, 2017 (Supreme Court Merits)
Gill v. Whitford
No. 16-1161
Pro Bono Author: Paul Diller

In 2011, Wisconsin legislators redrew state assembly districts to reflect population changes recorded in the 2010 census. Map makers used a model designed to predict the likelihood that various proposed districts would elect a Republican. In the 2015 election, Republican candidates received less than 49% of the statewide vote and won seats in more than 60% of the state’s assembly districts; and, in 2014, 52% of the vote yielded 63 seats for Republicans. In 2015, Wisconsin voters filed a lawsuit claiming that Wisconsin’s election map was the result of partisan gerrymandering and violated their constitutional rights.

A divided panel of three federal judges ruled in favor of the challengers, finding that the map enacted by the Wisconsin legislature was a result of partisan gerrymandering and prohibited by the First and Fourteenth Amendments. The three-judge panel had ordered that new legislative districts be drawn by this November for the 2018 elections, but the Supreme Court stayed that order until it has a chance to rule on the case.

The challengers in Whitford proposed a 3-part standard for determining the influence of partisan gerrymandering in the district-drawing process. The first prong is whether there was discriminatory intent. The second prong is whether there was a discriminatory effect. To determine discriminatory effect, the challengers proposed a standard based on “wasted votes”–votes in each district cast for a non-winning party’s candidate. By dividing the difference between the sums of each party’s wasted votes by the total number of votes cast, the proposed standard yields an efficiency gap. The challengers in Whitford argued that efficiency gaps over 7% would demonstrate a discriminatory effect. The efficiency gap in Wisconsin was 13.3% in 2012 and 9.6% in 2014, according to the proposed standard. The third prong in the proposed analysis is whether the redistricting plan’s “partisan effect can be explained by the legitimate state prerogatives and neutral factors that are implicated in the redistricting process.”

The issues in this case are whether partisan gerrymandering cases are justiciable and if so, by what standard should the constitutionality of partisan gerrymandering claims be measured?


Filed September 5, 2017 (Supreme Court Merits)
Christie v. National Collegiate Athletic Association
No. 16-476
Pro Bono Author: Richard Simpson

Instead of directly prohibiting sports betting under federal law, Congress passed the Professional and Amateur Sports Protection Act (PASPA), which prohibits state-sanctioned sports gambling. PASPA makes it “unlawful” for “a governmental entity to sponsor, operate, advertise, promote, license, or authorize by law or compact” sports wagering (28 U.S.C. § 3702(1)). In 2012, New Jersey amended its constitution to allow some sports gambling. New Jersey was sued by the NFL and other sports leagues for violating PASPA.

New Jersey argued PASPA is unconstitutional under the anti-commandeering doctrine because it requires the states “to affirmatively keep a prohibition against sports wagering on their books, lest they be found to have authorized sports gambling by law by repealing the prohibition.”

The Supreme Court has only struck down laws on anti-commandeering grounds twice. In New York v. United States, the Supreme Court struck down a “take-title” provision whereby states were required to take title to radioactive waste by a specific date, at the waste generator's request, if they did not adopt a federal program. And in Printz v. United States, the Court struck down a federal law requiring state officers to conduct background checks on prospective gun owners.

In Christie I, the Third Circuit responded that New Jersey’s position “‘rest[ed] on a false equivalence between repeal and authorization,’ implying that a repeal is not an authorization.” At the time, New Jersey petitioned the Supreme Court and the United States submitted an amicus in opposition, arguing that under the Third Circuit’s construction of PASPA, States were free to repeal their prohibitions on sports wagering “in whole or in part.”

Thus, after losing at the Third Circuit, in 2014 New Jersey passed a law repealing restrictions on sports gambling (as opposed to affirmatively allowing it and setting up a state regulatory scheme). New Jersey was sued again by many of the same parties, and in Christie II, New Jersey again argued that PASPA unconstitutionally commandeers states, this time by not allowing New Jersey to repeal its own laws. The Third Circuit characterized New Jersey’s argument as follows: “’We told you so’”—if the legislature cannot repeal New Jersey’s prohibition as it attempted to do in the 2014 law, then it is required to affirmatively keep the prohibition on the books, and PASPA unconstitutionally commandeers the states.”

Nonetheless, the Third Circuit in Christie II again rejected the state’s anti-commandeering argument. The Third Circuit distinguished PASPA from the laws at issue in New York and Printz, noting that PASPA did “not present states with a coercive choice to adopt a federal program” or “require states to take any action.”

The Supreme Court will decide whether a federal statute that prohibits modification or repeal of state-law prohibitions on private conduct impermissibly commandeers the regulatory power of states in contravention of New York v. United States.


Filed August 18, 2017 (Supreme Court Merits)
Artis v. District of Columbia
No. 16-460
Pro Bono Author: Katharine Mapes

This case arises out of an employment discrimination suit against the District of Columbia. On December 16, 2011, the plaintiff sued in federal court claiming a Title VII violation. The federal district court had supplemental jurisdiction over her claims based on the District’s Whistleblower Act, False Claims Act, and her common law claim for wrongful termination against public policy. On June 27, 2014, the district court granted DC’s motion for judgment on the pleadings as to her federal employment discrimination claims and therefore dismissed the remaining claims as that was the sole federal claim creating jurisdiction for the federal court.

59 days later, the plaintiff filed her remaining claims arising under District of Columbia law in superior court. DC filed a motion to dismiss / for summary judgment based on the claims being time barred under their respective statute of limitations and 28 U.S.C. § 1367 (d). The trial judge agreed, finding 28 U.S.C. § 1367 (d) does not suspend state statutes of limitations at the time of the unsuccessful federal filing, but rather creates a thirty-day period (the “grace period”) for a claimant to file actions over which the U.S. District Court lacked jurisdiction.

28 U.S.C. § 1367 (d) provides: “[t]he period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.”

There were nearly two years remaining on the statute of limitations when the plaintiff filed her suit in the United States District Court, and she asserts she had that period (plus thirty days) to file her claims in the Superior Court. DC argues that “tolled” means a thirty-day “grace period,” meaning that because the limitations period had expired while the federal suit was pending, the appellant had only thirty days to file in Superior Court.

The DC Circuit held that the statute regarding tolling is ambiguous, but in light of its context and purpose, the “grace period” approach advocated by DC was the correct interpretation and thus, the plaintiff/appellant’s claims arising under DC law were time-barred. The DC Circuit also reasoned that this approach better balances federalism concerns.

The issue the Supreme Court will decide is whether the tolling provision in 28 U.S.C. § 1367(d) suspends the limitations period for the state-law claim while the claim is pending and restarts the limitations once the federal case is dismissed and allows an additional 30 days after the claim is dismissed, or whether the tolling provision stops the limitations period from applying to the state law claims for the duration of the suit and if expired or having less than thirty days left to run, allows 30 days beyond the dismissal for the plaintiff to refile.


Filed August 7, 2017 (Supreme Court Merits)
Husted v. A. Philip Randolph Institute
No. 16-980
Pro Bono Author: Joshua Davis

To comply with list maintenance duties required by the National Voter Registration Act (NVRA), Ohio compiles a list of people who haven’t engaged in “voter activity” for two years and sends them a confirmation notice. If they don’t respond to the notice and don’t vote in the next two federal election cycles, they are removed from the voter rolls.

The NVRA says that voters can’t be removed from the polls because they failed to vote. The Help America Vote Act (HAVA) modified it to say that states may remove voters if they don’t respond to a notice and don’t vote in the next two federal election cycles.

The Sixth Circuit held the Ohio scheme violates NVRA and HAVA. The Sixth Circuit concluded that the Ohio scheme “constitutes perhaps the plainest possible example of a process that ‘result[s] in’ removal of a voter from the rolls by reason of his or her failure to vote.” According to the court, the “trigger” for someone being kicked off the rolls is failure to vote.

Ohio argues that it doesn’t remove voters “by reason of” their failure to vote; it removes voters “by reason of” their failure to respond to a notice. They argue that the NVRA doesn’t regulate what triggers the confirmation notice.

The issue in this case is whether Ohio's list-maintenance process, which uses a registered voter's voter inactivity as a reason to send a confirmation notice to that voter, violates the NVRA or the HAVA.


Filed May 11, 2017 (Supreme Court Merits)
Filed July 8, 2016 (Supreme Court Petition-stage)
District of Columbia v. Wesby
No. 15-1485
Pro Bono Author Petition Stage: Kymberly Evanson (2017 Amicus Service Award Recipient)
Pro Bono Author Merits: John Korzen

In this case, the District of Columbia Metropolitan Police Department received a late- night complaint about a loud party and possible illegal activities inside a house that reportedly had been vacant for several months. Officers soon arrived at the home and heard music coming from inside. When the officers knocked and entered, the people inside scattered into different rooms and hid. Police found twenty-one people throughout the house. The officers observed activity like that “conducted in strip clubs for profit.” Consistent with being a vacant property, the house was in “disarray” and essentially unfurnished.

Police gathered information and interviewed all persons present. No one present owned the house or knew its owner. Some told police that they were there for a birthday party, while others claimed it was a bachelor party. No one could identify the guest of honor. Several said that they had been invited by other people, and some said that a woman known as “Peaches” had given them permission to be in the home. “Peaches,” though, was not present.

Officers called “Peaches” on the phone several times but she was evasive and repeatedly hung up. When an officer asked her to come to the home, she refused, explaining that she would be arrested if she did so. “Peaches” told police she had told the partiers that they could use the home. She also initially claimed to police that the owner had given her permission to use the home and that she was “possibly renting” it from him. Soon, though, “Peaches” admitted to police that, contrary to her initial claim, she lacked the owner’s permission to use the home. Police then spoke with the homeowner, who confirmed that the house was vacant and that no one, including “Peaches,” had permission to be there.

Police arrested all the partygoers inside for criminal trespass (and disorderly conduct – though the petition will focus on criminal trespass), although prosecutors ultimately did not pursue charges.

The partiers brought a Section 1983 claim, alleging the officers lacked probable cause to arrest them for criminal trespass. The district court granted the partiers’ motion for summary judgment, finding that their arrests were without probable cause and that the two defendant officers were not entitled to qualified immunity. After a damages-only trial, the district court entered a judgment against the officers (and jointly against the District of Columbia) totaling nearly $1 million.

The District of Columbia Circuit affirmed in a 2-1 decision. It reasoned that the officers did not have “conflicting information” that would overcome the partiers’ claim that they had been invited to the house by “Peaches” and therefore no reasonable officer could have believed that the partiers knew or should have known that their entry was unauthorized. (The DC statute for trespass required a culpable mens rea on the part of the trespassers). Thus, according to the Circuit Court, a reasonable officer could not have believed that there was probable cause to arrest the plaintiffs.

The DC Circuit next concluded that the law was clearly established, for qualified immunity purposes, because the legal elements of criminal trespass were clearly established, even though no case had invalidated an arrest for trespassing under similar circumstances.

The issues before the Court are: (1) Whether police officers who found late-night partiers inside a vacant home belonging to someone else had probable cause to arrest the partiers for trespassing under the Fourth Amendment, and in particular whether, when the owner of a vacant home informs police that he has not authorized entry, an officer assessing probable cause to arrest those inside for trespassing may discredit the suspects' questionable claims of an innocent mental state; and (2) whether, even if there was no probable cause to arrest the apparent trespassers, the officers were entitled to qualified immunity because the law was not clearly established in this regard.

IMLA submitted an amicus brief at the certiorari stage, framing the issues more broadly. Specifically: (1) whether a police officer assessing probable cause is entitled to credit one set of conflicting statements over another; and (2) even if the officer cannot, whether the law was clearly established on this point. IMLA joined a brief submitted by the SLLC at the merits stage as well.


 

Past Supreme Court Merits Cases

Filed March 3, 2017 (Supreme Court Merits)
Filed December 2, 2016 (Supreme Court Petition Stage)
No. 16-605
Town of Chester, New York v. Laroe Estates, Inc.
Pro Bono Author: Sarah Shalf (2017 Amicus Service Award Recipient)
Holding: A litigant seeking to intervene as of right under Federal Rule of Civil Procedure 24(a)(2) must meet the requirements of Article III standing if the intervenor wishes to pursue relief not requested by a plaintiff.

The original plaintiff in this case was a property developer (Sherman) who sued the Town of Chester for, among other things, an alleged regulatory taking due to the Town’s failure to approve a subdivision that Sherman planned to build on real property that he owned. Laroe Estates, Inc. (Laroe), the potential intervenor was one of two entities that held mortgages on Sherman’s property. The other entity was a bank, and it had the senior mortgage. After Sherman defaulted on his repayments, the bank foreclosed on the property and took possession following a foreclosure sale.

Laroe subsequently moved to intervene in Sherman’s suit against the Town pursuant to Federal Rule of Civil Procedure 24. Laroe argued that it was a “contract vendee” (essentially, a mortgagee) of Sherman’s real property and therefore had a sufficient equitable interest in the property to assert a taking claim against the Town. The district court disagreed. It denied Laroe’s motion to intervene.

The Second Circuit vacated and remanded. The panel identified the relevant question on appeal as whether “a party seeking to intervene as of right must independently have standing.” The Second Circuit noted that a circuit split exists on this issue and joined the majority of circuits in holding that standing is not a prerequisite for intervention under Rule 24.

The issue in this case was whether a party seeking to intervene as a matter of right needs independent Article III standing to do so.

IMLA submitted an amicus brief at the certiorari stage and joined a brief filed by the SLLC at the merits stage.

The Supreme Court held: (1) A litigant seeking to intervene as of right under Federal Rule of Civil Procedure 24(a)(2) must meet the requirements of Article III standing if the intervenor wishes to pursue relief not requested by a plaintiff; and (2) the court of appeals is to address on remand the question whether Laroe Estates seeks different relief than Steven Sherman: If Laroe wants only a money judgment of its own running directly against the town of Chester, then it seeks damages different from those sought by Sherman and must establish its own Article III standing in order to intervene.


Filed January 25, 2017 (Supreme Court Merits)
No. 16-369
Los Angeles County v. Mendez
Pro Bono Authors: Daniel Collins (2017 Amicus Service Award Recipient)
Holding: The Fourth Amendment provides no basis for the U.S. Court of Appeals for the 9th Circuit's "provocation rule."

In Mendez, a team of police officers, including Conley and Pederson, responded to a call that a wanted parolee, Ronnie O’Dell, had entered a grocery store. Per the standard parolee at large classification, O’Dell had been classified as armed and dangerous. During a debrief after not finding O’Dell in the store, a confidential informant told police a man matching O’Dell’s description was on a bike outside a residence owned by Paula Hughes. Officers were told a man and a pregnant woman lived in Hughes’s backyard. Officers proceeded to the Hughes property in order to search it as well as another house down the street. The officers did not have a warrant for their search.

While other officers searched the Hughes’s residence, Officers Pederson and Conley were assigned to clear the backyard. They searched three storage sheds and found nothing. Then they encountered a shed surrounded by an A/C unit, electrical cord, clothes locker, etc. Officer Conley opened the shed’s door and pulled back a blanket used to insulate the shed. The officers saw a silhouette of an adult male holding what looked like a gun. They yelled “gun,” and fired a number of shots, seriously injuring both individuals residing in the shack. It turned out to be a BB gun that Mendez kept in his bed and used to shot rats when they entered the shed. Mendez claimed he was in the process of moving the BB gun so he could sit up in bed.

The district court concluded that although the deputies’ shooting of the Plaintiffs was not excessive under Graham, the deputies were nevertheless responsible / liable for damages under the “provocation” doctrine. The Ninth Circuit’s “provocation” rule may only apply where an officer’s use of force was preceded by a constitutional violation by the defendant, who intentionally or recklessly provoked a violent response.

Specifically, the district court found the officer’s search of the shack was unlawful under the Fourth Amendment and therefore, even though the officers’ use of force was reasonable, they were nevertheless liable because they “provoked” the violent confrontation with their warrantless search of the shack. The Ninth Circuit affirmed the district court’s findings on this count.

The questions presented in this case were: (1) Whether the U.S. Court of Appeals for the 9th Circuit's “provocation” rule should be barred as it conflicts with Graham v. Connor, 490 U.S. 386 (1989) regarding the manner in which a claim of excessive force against a police officer should be determined in an action brought under 42 U.S.C. § 1983 for a violation of a plaintiff's Fourth Amendment rights, and has been rejected by other courts of appeals; and (2) whether, in an action brought under Section 1983, an incident giving rise to a reasonable use of force is an intervening, superseding event which breaks the chain of causation from a prior, unlawful entry in violation of the Fourth Amendment.

The Court ruled that the Ninth Circuit’s provocation rule conflicted with Graham v. Connor. The Court nonetheless remanded the case as the noted that the Mendez’ damages may not be totally foreclosed because they can recover for injuries that were proximately caused by the warrantless entry (but not from the failure to knock and announce).


Filed January 24, 2017 (Supreme Court Merits)
No. 15-1194
Packingham v. North Carolina
Pro Bono Authors: John Neiman & Braxton Thrash (2017 Amicus Service Award Recipients)
Holding: The Court concluded that the North Carolina Statute impermissibly restricts lawful speech in violation of the First Amendment.

The issue in this case was whether, under the Court’s First Amendment precedents, a law that makes it a felony for any person on the state's registry of former sex offenders to “access” a wide array of websites – including Facebook, YouTube, and nytimes.com – that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”

In this case, North Carolina law prohibits registered sex offenders from accessing commercial social networking where the registered sex offender knows minors can create or maintain a profile. Lester Packingham was charged with violating this statute because he accessed Facebook. He claims the statute violates the First Amendment both on its face and as applied to him.

The North Carolina Supreme Court held that North Carolina’s law is constitutional “in all respects.” The North Carolina Supreme Court first concluded that North Carolina’s law regulates “conduct” and not “speech,” “specifically the ability of registered sex offenders to access certain carefully-defined Web sites.” Even though the court concluded that the statute applied to “conduct” not “speech,” it still underwent a Reed v. Town of Gilbert analysis (a speech case) to determine if the statute was content-neutral. The court concluded that the statute is a “content-neutral” regulation under Reed because it “imposed a ban on accessing certain defined commercial social networking Web sites without regard to any content or message conveyed on those sites.”

The Supreme Court unanimously reversed the North Carolina Supreme Court, concluding that the law impermissibly restricted lawful speech in violation of the First Amendment. Notably, the Court assumed without deciding, that the statute was content neutral, but that it nevertheless could not withstand intermediate scrutiny. IMLA joined a brief filed by the SLLC urging the Court to apply intermediate scrutiny to the law.


 

Filed December 21, 2016 (Supreme Court Merits)
Expressions Hair Design v. Schneiderman
No. 15-1391
Pro Bono Author: Charles Rothfeld

A New York law prohibits sellers/merchants from imposing a surcharge on purchasers who use a credit card rather than cash. However, the law does not apply where merchants provide a discount to customers who pay in cash. For example, per a “no-surcharge” law if the regular price of an item is $100, then credit-card customers may not be charged $103 and cash customers $100. But if the regular price is $103, then credit-card customers may be charged $103 and cash customers may be provided a discounted price of $100. (The reason for the difference in treatment between surcharges and cash discounts pertains to studies done that people are more likely to balk at a surcharge even where the result is the same amount charged on the credit card). The state law is modeled off of the expired federal law. 

Expressions Hair Design wants to post a single price for its goods and services but charge more to credit-card customers. Section 518 prohibits it from doing so. Expressions claims that Section 518 violates the First Amendment. The Second Circuit concluded that Section 518 regulates conduct and not speech and it therefore does not violate the First Amendment.

The issue before the Court is whether state no-surcharge laws unconstitutionally restrict speech conveying price information (as the Eleventh Circuit has held), or regulate economic conduct (as the Second and Fifth Circuits have held).

An amicus brief filed on behalf of a number of retailers asked the Court to use this case as an opportunity to rule that Reed v. Town of Gilbert applies to commercial speech and that strict scrutiny should therefore be used when analyzing these laws. IMLA joined a brief filed by the SLLC to argue, among other things, that Reed should not apply.


Filed October 7, 2016 (Supreme Court Merits)
Bank of America v. City of Miami (Wells Fargo v. Miami)
No. 15-1111
Pro Bono Author: Deepak Gupta

The City of Miami brought a claim under the Fair Housing Act (FHA) against Bank of America, alleging that it engaged in a decade-long pattern of discriminatory lending in the residential housing market that caused the City economic harm. The City claims that the bank targeted black and Latino customers in Miami for predatory loans that carried more risk, steeper fees, and higher costs than those offered to identically situated white customers, therefore creating internal incentive structures that encouraged employees to provide these types of loans. 

The City alleged that by steering minorities toward these predatory loans, Bank of America caused minority-owned properties throughout Miami to fall into unnecessary or premature foreclosure, depriving the City of tax revenue as property values decreased and also simultaneously forcing the City to spend more on municipal services such as police, firefighters, trash and debris removal, etc., to combat the resulting blight. 

The City used statistical analyses in its complaint to allege that the Bank’s conduct violated the Fair Housing Act in two ways. First, the City alleged that the Bank intentionally discriminated against minority borrowers by targeting them for loans with burdensome terms. Second, the City claimed that the Bank’s conduct had a disparate impact on minority borrowers, resulting in a disproportionate number of foreclosures on minority-owned properties, and a disproportionate number of exploitative loans in minority neighborhoods. 

The Eleventh Circuit reversed the district court’s decision to dismiss the City’s complaint, concluding that the City has constitutional standing to pursue its FHA claims. The circuit court determined under controlling Supreme Court precedent, the “zone of interests” for the Fair Housing Act extends as broadly as permitted under Article III of the Constitution, and therefore encompasses the City’s claim. The court also found that the FHA contains a proximate cause requirement, based on principles drawn from the law of tort, but that the City had adequately alleged proximate cause. Finally, the Eleventh Circuit concluded that the statute of limitations did not necessarily bar the City’s claim because the “continuing violation doctrine” can apply to its claims (but remanded on this point for the district court to make a determination). 

The petition for certiorari, which the Court granted, raises the following questions: (1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.


Filed August 30th, 2016 (Supreme Court Merits)
Ivy v. Morath
No. 15-486
Pro Bono Author: Rick Simpson

Held: The Supreme Court vacated and remanded with instructions to dismiss the case as moot before it heard oral argument in the case.

Texas law requires anyone under 25 to complete driver education and be awarded a certificate before being issued a driver’s license. The Texas Education Agency (TEA) has licensed private driver education schools to issue these certificates. The petitioner is a deaf individual who sought a driver’s license. 

The TEA did not provide Ivy and other deaf individuals any other viable option to obtain a certificate other than attending these licensed private schools. These schools refused to accommodate Ivy’s disability under the ADA by providing a sign language interpreter. The TEA refused to provide another alternative or force the licensed private schools to comply with ADA standards by revoking their licenses. Thus, Ivy is unable to obtain a Texas driver’s license until she turns 25. 

The TEA claims that it is not responsible for ensuring that the private institutions it licenses are complying with the ADA because the TEA is not providing any service, program, or activity itself. No contractual or agency relationship exists between the TEA and the private driver education schools, but the TEA charges schools licensure fees and can only license a school that “complies with all county, municipal, state, and federal regulations,” which includes the ADA.

The Fifth Circuit ruled 2-1 that since the TEA was not in a contractual or agency relationship with the private schools, it does not provide a service, program, or activity under Title II of the ADA. Therefore, although the schools may be responsible for their own ADA compliance, the TEA is not dually responsible. 

The issue in this case is whether the Fifth Circuit erred in deciding that the relationship between public and private actors does not invoke dual obligations to accommodate disabilities in any context other than an express contractual relationship between a public entity and its private vendor.

Supporting neither party, IMLA joined a SLLC brief arguing that state and local governments and other public agencies are required to ensure private persons’ compliance with the Americans with Disabilities Act :(1) where those private persons may fairly be said to be implementing a service, program or activity of the public entity itself; or (2) where the private actor is implementing a service, program or activity that constitutes a core governmental function or where the private person is charged with implementing a service, program or activity undertaken by a public entity for its own benefit and not as part of the regulation of private conduct.


Filed August 10th, 2016 (Supreme Court Merits)
Manuel v. City of Joliet
No. 14-9496
Pro Bono Author: Lawrence Rosenthal

In this case, police officers found a bottle of pills in Elijah Manuel’s pocket during a traffic stop. The officers tested the pills at the scene and, according to Manuel, falsified the results and found that they were ecstasy. A lab report concluded they were not ecstasy but Manuel was detained and charges against him were not dropped for another month. 

Manuel brought a claim for malicious prosecution under Section 1983. The Seventh Circuit upheld the district court’s dismissal of Manuel’s Section 1983 claim. Previously in Newsome v. McCabe, the Seventh Circuit held that federal claims of malicious prosecution are founded on the right to due process, not the Fourth Amendment. Thus, in the Seventh Circuit there is no malicious prosecution claim under federal law if state law provides a similar cause of action and Illinois provides for a similar cause of action. 

The question before the Supreme Court is whether an individual’s Fourth Amendment right to be free from unreasonable seizure continues beyond legal process so as to allow a malicious prosecution claim based upon the Fourth Amendment.


Filed June 17th, 2016 (Supreme Court Merits)
Murr v. Wisconsin
No. 15-214
Pro Bono Author: Stuart Banner

This case involves two significant issues for local government. The first is by virtue of the claim of a takings and its application to “the parcel as a whole” theory and the second involves the common land use regulation that merges two non-conforming lots into one upon events such as common title or building across property lines. 

In this case, the Murrs own two lots based on a conveyance in 1995 from their parents who held the title to the lots (E and F) in two distinct titles; i.e., one in their names and one in their company’s name. These contiguous lots E and F, which together include a buildable area of only 0.98 acres are each non-conforming. Lot F contained a cabin and lot E was undeveloped. A St. Croix County ordinance dating from around 1970 prohibits the individual development or sale of adjacent non-conforming lots under common ownership that are each less than one acre total. But the ordinance treats adjacent lots of less than an acre as a single, buildable lot if they are separately owned. 

The Murrs sought and were denied a variance to separately use or sell lots E and F. They could use the lots only as one single buildable lot.

The Murrs brought suit, claiming that the ordinance resulted in an unconstitutional uncompensated taking because, they argue, Lot E serves no purpose or use and has no value because it cannot be sold. The lower court found their claim barred by limitations.

The Wisconsin Court of Appeals ruled there was no taking in this case and passed on the limitations issue. The court looked at the value of lots E and F in combination and determined that the Murrs’ combined property retained significant value despite being merged. A year-round residence could be located on lot E or F or could straddle both lots. 

The Wisconsin Court of Appeals relied on state court precedent to conclude that the lots should be considered in combination for purposes of takings analysis. According to the Wisconsin Court of Appeals, that state court precedent relied on the “Supreme Court’s historical formulation of the takings inquiry and practical consideration.” The court noted: 

[T]he United States Supreme Court has never endorsed a test that ‘segments’ a contiguous property to determine the relevant parcel …. Instead, to determine whether a particular government action has accomplished a taking, courts are to focus “‘both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole ….’”

The question before the Supreme Court is whether, in a regulatory taking case, the “parcel as a whole” concept as described in Penn Central Transportation Company v. City of New York, establishes a rule that two legally distinct but commonly owned contiguous parcels must be combined for takings analysis purposes.

 

 

Filed March 22, 2016 (Supreme Court Merits)
Birchfield v. North Dakota
No. 14-1468
Pro Bono Author: Gregory Garre

The issue in this case is whether, in the absence of a warrant, a state may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood.

In one of the three consolidated cases, Birchfield drove his car into a ditch and when an officer arrived on the scene he believed Birchfield was intoxicated. Birchfield failed a field sobriety test and a preliminary breath test showed a blood alcohol level of .254. The officer placed him under arrest and thereafter, Birchfield refused to submit to a chemical test. Such a refusal is a violation of North Dakota law and Birchfield was therefore charged with a refusal to submit to a chemical test, which is a class B misdemeanor. 

Under N.D.C.C. § 39-20-01(1), an individual who drives “is deemed to have given consent, and shall consent, subject to the provisions of this chapter, to a chemical test” which may only be administered after placing the individual under arrest.

N.D.C.C. § 39-08-01 provides that a person may not drive a vehicle if that person refuses to submit to a chemical test to determine the alcohol concentration in his/her blood and any such refusal is guilty of a criminal offense. 

Birchfield claimed that the statute criminalizing the refusal to submit to a chemical test violates the Fourth Amendment. Relevant to this case is the Supreme Court’s decision in Missouri v. McNeely, 133 S. Ct. 1552, 1568 (2013), which held that “in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.” Additionally, in Camara v. San Francisco (1967), which involved a city ordinance that allowed the warrantless inspection of property, the Court held there could be a violation of the Fourth Amendment even if no search was conducted. The North Dakota Supreme Court distinguished Camara noting that implied consent laws only authorize chemical testing where an officer has probable cause to believe the defendant is under the influence and has already arrested the defendant. 

The North Dakota Supreme Court held that the criminal refusal statute satisfies the general reasonableness requirement of the Fourth Amendment. In so holding, the North Dakota Supreme Court discussed a number of court decisions from around the country that have similarly held that these implied consent statutes (which exist in all 50 states) do not violate the Fourth Amendment.

IMLA’s amicus brief points out that “drunk driving imposes a terrible toll on America, killing thousands and shattering the lives of tens of thousands of others each year.” The brief argues that while driving is important to many Americans, it is a voluntary privilege. Thus, agreeing to the chemical testing is voluntary as well. And criminal implied consent laws are reasonable because “they have been in effect across the Nation for decades, and that this Court has repeatedly upheld them against challenge and referred to them only in approving terms.”


Filed March 2, 2016 (Supreme Court Merits)

U.S. Army Corp of Engineers v. Hawkes
No. 15-290
Pro Bono Author: Joseph Jacquot 

The issue in this case is whether the United States Army Corps of Engineers' determination that the property at issue contains “waters of the United States” protected by the Clean Water Act, constitutes “final agency action for which there is no other adequate remedy in a court," and is therefore subject to judicial review under the Administrative Procedure Act. 

In this case, the Hawkes wanted to mine peat from wetland property in Minnesota. The Army Corp of Engineers issued a “Jurisdictional Determination” (JD) that the property constitutes “waters of the United States” per the Clean Water Act meaning the Hawkes would have to obtain a permit to discharge dredged or fill materials into these “navigable waters.” Notably, the Corp concluded the property was connected by culverts and unnamed streams to a traditional navigable water way some 120 miles away. In Rapanos (2006) the Court stated that a permit application takes on average 788 days and costs about $275,000. Alternatively, if they chose to forego a permit and commenced mining the peat from their property they could be faced with extremely high penalties under the Clean Water Act. 

The Hawkes commenced an action in district court challenging the JD and the Army Corp of Engineers argued that the JD was not a “final agency action” and therefore not subject to judicial review under the Administrative Procedure Act. 

The lower court ruled that the Hawkes could seek judicial review of the jurisdictional determination. Per the Administrative Procedures Act judicial review may be sought from final agency actions. Per Bennett v. Spear, 520 U.S. 154 (1997), agency action is final when it marks the consummation of the agency’s final decision making process and when legal consequences flow from the action. 

The court found the jurisdictional determination is the consummation of the Corps decision making process because the Corp describes an approved jurisdictional determination as a “definitive, official determination” that there are or aren’t waters of the U.S. on a site, which can be relied on for five years. 

The court concluded that “rights or obligations have been determined” and “legal consequences flow” from a jurisdictional determination because, while it does not compel affirmative action, the Hawkes’ two choices following the jurisdictional determination are cost prohibitive. They can complete the permitting process which will be costly, time consuming, and ultimately futile. Or they proceed without a permit and risk an enforcement order from the Corp and stiff penalties.

IMLA’s amicus brief argued that local governments face the same challenges that the respondent’s do as landowners, however, they also have additional considerations as governmental entities that are empowered to provide long-term planning for communities including economic development and capital infrastructure projects and they therefore need the certainty provided by prompt judicial review.


Filed December 23, 2015 (Supreme Court Merits)
Heffernan v. City of Paterson
No.14-1280
Pro Bono Author: Collin Udell

Held: When an employer demotes an employee out of a desire to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment and Section 1983 even if the employer's actions are based on a factual mistake about the employee's behavior.

The issue in this case is whether the First Amendment bars the government from demoting a public employee based on a supervisor’s perception that the employee supports a political candidate.

Police officer Jeffery Heffernan’s former police chief and friend, Lawrence Spagnola, was running for mayor against the current mayor of Paterson. Because of the politically sensitive nature of the situation, the current police chief (who directly reports to the mayor) instituted a policy for a limited number of high ranking employees, including Heffernan, that they were prohibited from getting involved in either campaign.

While Heffernan wanted Spagnola to win he didn’t work on his campaign. Heffernan’s bedridden mother asked Heffernan to pick up a campaign sign for her and Heffernan in turn met with Spagnola’s campaign manager to pick up the sign. Another police officer saw Heffernan talking to Spagnola’s campaign manager and told one of Heffernan’s supervisors. Heffernan was demoted for his “overt involvement in a political election,” in violation of the aforementioned policy, though he intended no such thing by merely picking up the sign for his mother.

The Third Circuit ruled against Heffernan concluding that there is no “perceived-support” First Amendment retaliation theory. A traditional and crucial element of a First Amendment retaliation claim is that a plaintiff actually exercises a First Amendment right (convey a political message or associate with a political party). Heffernan exercised no such right.

It was undisputed that Heffernan did not intend to convey a political message or intend to affiliate himself with the political campaign, which would be protected by the First Amendment, when he picked up the sign for his mother. (He repeatedly disavowed doing so). His demotion was based on his employer’s perception that he intended to convey a political message / associate with the campaign. The Third Circuit noted: “it is not ‘a violation of the Constitution for a government employer to [discipline] an employee based upon substantively incorrect information,’ Waters v. Churchill, 511 U.S. 661, 679 (1994), even where the government employer erroneously believes that the employee had engaged in protected activity under the First Amendment.”

IMLA filed a brief in this case arguing that an employee in Heffernan’s position has a host of protections available to him and there is no need to constitutionalize the issue by creating a First Amendment violation. IMLA also argued that a government employee’s ability to engage in political activity is not without limit and because Heffernan was an employee in a confidential and sensitive position he could have been demoted for actual political activities, rather than just perceived ones and that there could therefore be no First Amendment violation in this case.



Filed October 7, 2015 (Supreme Court Merits)
Luis v. United States
No. 14-419
Pro Bono Author: Mary Massaron

Held: A government may not seize “untainted assets” – i.e., those not traceable to the crime – prior to trial, as such a forfeiture would violate the defendant’s Sixth Amendment right to obtain counsel of her choice.

Luis was indicted on charges related to $45 million in Medicare fraud. Because her personal assets amounted to much less than $45 million, the federal government sought to freeze the use of her assets not traceable to the fraud pursuant to statutory authority. See 21 U.S.C. 853. The petitioner claimed that the forfeiture of such legitimately obtained assets violated her Sixth Amendment right to counsel because she claimed she was not able to afford counsel of her choosing if those assets were seized. 

The Eleventh Circuit held that the seizing the assets did not violate her constitutional rights. The district court, which was upheld by the Eleventh Circuit, used this example:

                           [S]uppose . . . a bank robber [steals $100,000 and has] spent the $100,000 that he stole. It just so happens, however, that he has another $100,000 that he obtained legitimately. Should his decision to spend the $100,000 he stole mean that he is free                            to hire counsel with the other $100,000 when Congress has authorized restraint of those substitute assets? The reasonable answer is no. The bank has the right to have those substitute, untainted assets kept available for return as well.

The question before the Supreme Court is whether preventing a criminal defendant from using assets not traceable to a criminal offense to hire counsel of choice violates the Sixth Amendment’s right to counsel.

IMLA’s amicus brief argued that striking down the forfeiture law in question would threaten to overturn numerous state and local forfeiture laws and would undermine law enforcement efforts directed at sophisticated criminal enterprises.



Filed September 10, 2015 (Merits-stage brief; SCOTUS)
Franchise Tax Board of California v. Hyatt
No. 14-1175
Petition-stage brief filed April 24, 2015
Petition Stage Pro Bono Author: Quin Sorenson
Merits Stage Pro Bono Author: Quin Sorenson
Status: Certiorari was granted on June 30, 2015

This case involves a former California resident who earned hundreds of millions of dollars in licensing fees during the time that he lived in California before moving to Nevada. In 1993, the Franchise Tax Board of California (FTB) audited his California tax returns and concluded that he owed the state millions in unpaid income taxes, interest, and penalties. The now Nevada resident responded by filing suit against FTB in Nevada state court, alleging that FTB had committed fraud, intentional infliction of emotional distress and other torts in the course of the audit.

The Nevada Supreme Court held that the discretionary-function immunity for a governmental entity and its employees was not applicable in this case because the Nevada Court recognizes an exception to that immunity for bad-faith conduct. The Nevada Supreme Court also held that FTB was not entitled, under principles of comity, to the Nevada statutory cap on damages that is available to Nevada governmental entities. The court concluded that allowing FTB to utilize the damages cap would violate Nevada’s public policy because the state’s interest in providing relief to its citizens outweighs the comity principles.

The issues before the Court are: (1) Whether Nevada may refuse to extend to sister States haled into Nevada courts the same immunities Nevada enjoys in those courts; and (2) Whether Nevada v. Hall, which permits a sovereign State to be haled into the courts of another State without its consent, should be overruled.

IMLA submitted an amicus brief at the petition stage and joined a SLLC brief that focused on the first of these issues.


Filed April 8, 2015 (Merits-stage brief; SCOTUS)
Kingsley v. Hendrickson
No. 14-6368
Pro Bono Author: Aaron Streett
Held: To prove an excessive force claim under 42 U.S.C. § 1983, a pretrial detainee must show only that the officers’ use of that force was objectively unreasonable; he does not need to show that the officers were subjectively aware that their use of force was unreasonable


This case involves a claim of excessive force under 42 U.S.C. § 1983 by a pre-trial detainee. A different constitutional standard applies in excessive force cases depending on whether a person is an arrestee, a pre-trial detainee, or convicted. Specifically, the Fourth Amendment applies to unreasonable force claims against arrestees, the Fourteenth Amendment’s Due Process Clause applies to force used against pretrial detainees, and the Eighth Amendment applies to force used against those convicted. The “objectively reasonable” test applies under the Fourth Amendment to arrestees, which is the most plaintiff friendly test. Under the Eighth Amendment, a showing of malice is required in force claims, which is the most defendant friendly test. The Supreme Court has never articulated the specifics of the standard that applies to pretrial detainees.

In this case, the issue on appeal pertained to the jury instructions and the Seventh Circuit ruled that the excessive force jury instructions in this case, which used the term “reckless” three times, were not erroneous. The question before the Court is whether the requirements of a 42 U.S.C. § 1983 excessive force claim brought by a plaintiff who was a pretrial detainee at the time of the incident are satisfied by a showing that the state actor deliberately used force against the pretrial detainee and the use of force was objectively unreasonable. In other words, is there a subjective component to excessive force claims under the Fourteenth Amendment or should these claims be analyzed like Fourth Amendment claims brought by arrestees?


Filed April 8, 2015 (Merits-stage brief; SCOTUS)
Horne v. Department of Agriculture
No. 14-275
Pro Bono Author: John Echeverria

Held: The Fifth Amendment requires that the Government pay just compensation when it takes personal property, just as when it takes real property.  Any net proceeds the raisin growers receive from the sale of the reserve raisins goes to the amount of compensation they have received for that taking - it does not mean the raisins have not been appropriated for Government use.  Nor can the Government make raisin growers relinquish their property without just compensation as a condition of selling their raisins in interstate commerce.

The issues in this case are as follows: (1) Whether the government's “categorical duty” under the Fifth Amendment to pay just compensation when it “physically takes possession of an interest in property,” Arkansas Game & Fish Comm'n v. United States, applies only to real property and not to personal property; (2) whether the government may avoid the categorical duty to pay just compensation for a physical taking of property by reserving to the property owner a contingent interest in a portion of the value of the property, set at the government's discretion; and (3) whether a governmental mandate to relinquish specific, identifiable property as a “condition” on permission to engage in commerce effects a per se taking.

On the surface, this case has to do with a marketing order that regulates the sale of raisins. However the issues in this case affect local governments, particularly the petitioner’s argument that a person subject to government regulation may ignore the regulation, use the property as they see fit, and then when the government seeks to compel compliance and to impose sanctions defend on the basis that the regulation amounts to a Taking and that the property owner is justified in not complying with the unconstitutional condition. IMLA’s brief argues, among other things, that while this argument may have some allure where the regulation amounts to a Taking, where the regulation does not amount to a Taking the person’s actions can be irreversible: a historic structure or wetlets might be destroyed or changed; a national resource could be removed, damaged or destroyed, or a protected species could be destroyed or altered.


 Filed March 6, 2015 (Merits-stage brief; SCOTUS)

Obergefell v. Hodges
No. 14-556
Pro Bono Author: Blithe Smith Bock

Held: The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.

The issues in this case are as follows: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

IMLA joined an amicus brief filed by the U.S. Conference of Mayors and the cities of Los Angeles and San Francisco, arguing among other things that the freedom to marry is a fundamental right for everyone, including gay men and lesbians.


Filed January 28, 2015 (Merits-stage brief; SCOTUS)
Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc.
No. 14-86
Pro Bono Author: Amanda Kellar (IMLA)

Held: The Supreme Court held that to bring a religious accommodation claim an applicant or employee need only show that his or her need for a religious accommodation was a motivating factor in an employment decision

Abercrombie is a clothing store that depends on its sales associates who it calls “models” to represent its brand and promote its products. An applicant for employment applied for a job as a sales associate and she arrived at the interview wearing a head scarf. Abercrombie maintains a “Look Policy,” which in part forbids employees from wearing any headwear. Neither Abercrombie nor the applicant raised the issue of the head scarf, the applicant’s religion, or the applicant’s potential need for a religious accommodation during the interview. Ultimately, the applicant was not hired because head coverings are not permitted under the policy.

The Equal Employment Opportunity Commission filed suit on behalf of the applicant, claiming that Abercrombie failed to accommodate the applicant’s religion. The EEOC did not bring a disparate treatment claim and only brought the failure to accommodate claim. During her deposition, the assistant manager who interviewed the applicant testified that she “guessed” and “assumed” that the applicant was Muslim based on the head scarf, but she also testified that she did not “know” the applicant’s religion.

The Tenth Circuit ruled in favor of Abercrombie, finding that a plaintiff “ordinarily must establish that he or she initially informed the employer that the plaintiff adheres to a particular practice for religious reasons and that he or she needs an accommodation for that practice . . . ,”, which the applicant had not done. It further held that even if the employee herself need not give notice of her religious conflict, Abercrombie would still prevail because an employer must have “particularized, actual knowledge of the key facts that trigger its duty to accommodate,” and Abercrombie indisputably lacked actual knowledge—“from any source”—that the applicant wore her scarf for religious reasons or needed an accommodation for it. Indeed, the Tenth Circuit noted that even the EEOC’s own expert testified that headscarves can be worn by women for both religious and cultural reasons.

The issue before the Court was whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer's actual knowledge resulted from direct, explicit notice from the applicant or employee. In other words, the EEOC argued that employers should be liable for failure to accommodate claims even if the employer did not have actual knowledge of the employee or applicant’s need for a religious accommodation if the employer correctly “assumed” or “guessed’ that the applicant or employee needed an accommodation. IMLA joined a brief filed by the SLLC arguing that under the EEOC’s proposed rule, employers would be forced to inquire into applicant’s religions based on stereotypes and assumptions, which is precisely what Title VII seeks to prevent. Instead, the brief advocated for adhering to long-standing EEOC guidance that provides that employers should refrain from making hiring and other employment decisions based on stereotypes and assumptions.

In an 8-1 ruling, the Supreme Court concluded that to bring a religious accommodation claim an applicant/employee need not show that the employer had “actual knowledge” of the need for an accommodation. Instead the employee/applicant only must show that his or her need for an accommodation was a “motivating factor” in the employer’s decision. Title VII prohibits employers from taking an adverse employment action “because of” religion. While “because of” usually means but-for causation, Title VII has a more relaxed standard that prohibits even making religion a motiving factor in an employment decision. Simply put, the Court would not add an “actual knowledge” requirement to Title VII.

According to the Court, while a knowledge requirement could not be added to the motive requirement, arguably the motive requirement cannot be met unless the employer at least suspects the practice in question is religious. Here Abercrombie at least suspected Elauf wore a head scarf for religious reasons so the Court did not decide whether the motive requirement could be met without knowledge. Justice Alito, in a concurring opinion, stated that the Court should have decided this question--in the negative.


Filed January 16, 2015 (Merits brief; SCOTUS) 

City and County of San Francisco v. Sheehan
No. 11-16401
Petition-stage amicus brief – Filed on June 26, 2014
Pro Bono Author: Sarah Shalf

Held: The first issue, i.e., whether the Americans with Disabilities Act applies to police officers effectuating an arrest, was dismissed as improvidently granted. Regarding the second issue, Court held that police officers who were faced with an armed, violent, mentally ill suspect who had already made death threats to three people did not violate clearly established law when they entered the suspect’s residence instead of trying to accommodate her disability and that they were therefore entitled to qualified immunity

In this case, two police officers were called by a social worker to take Sheehan (the Respondent) into custody for an involuntary mental evaluation after Sheehan had threatened a social worker with a knife. When the officers arrived, they opened the door to Sheehan’s residence and she threatened to kill them and brandished a knife. They closed the door to her residence and called for backup. However, they then made the determination to reenter her residence before backup arrived to effectuate the arrest, in order to prevent Sheehan from harming herself or others. When they reentered, Sheehan rushed them with a knife. The officers tried to use pepper spray to stop her and when that didn’t work, they shot her several times. She survived and sued under 42 U.S.C. § 1983 and the ADA.

The Ninth Circuit agreed with the district court that the first entry was lawful (under the warrantless search exemption to render emergency assistance or respond to exigent circumstances) as was the officers’ ultimate use of deadly force under the circumstances. However, the Ninth Circuit held that the officer’s second entry into Sheehan’s residence was unlawful under both the Fourth Amendment and ADA. The court held that the second entry was unreasonable under the Fourth Amendment, on the basis that it was unreasonable to make an otherwise lawful entry when the officers could have desisted from their efforts to arrest Sheehan in light of her resistance and mental illness, and used different tactics that might have resulted in a different outcome. Regarding Sheehan’s claim under the ADA, the Ninth Circuit held that the “reasonable accommodation” requirement of Title II of the ADA applies to officers’ conduct in the course of an arrest – including an arrest of a violent individual like Sheehan. The court further held that the issue of the reasonableness of the accommodations proposed after this incident by Sheehan’s litigation expert (i.e., that the officers should have allowed Sheehan to remain in her “comfort zone” until they were able to calm her down), was one for the jury.

The Supreme Court granted certiorari on two issues: (1) whether the ADA requires police officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of an arrest; and (2) whether it was clearly established for the purposes of the Fourth Amendment that even where an exception to the warrant requirement applied, an entry into a residence could be unreasonable by reason of the anticipated resistance of an armed and violent suspect within the residence.

IMLA’s brief argued, among other things, that individual police officers should not be required to perform an analysis regarding what accommodations are necessary under the ADA, but rather, police officers should be afforded the broad discretion in these circumstances.

The Court dismissed the first issue regarding the ADA as improvidently granted.

Regarding the Fourth Amendment issue, the Court noted that the “real question” was “whether, despite these dangerous circumstances, the officers violated the Fourth Amendment when they decided to reopen Sheehan’s door rather than attempting to accommodate her disability.” Despite having reframed the question presented on the Fourth Amendment issue, the Court declined to rule on this constitutional question – i.e., whether the officers violated the Fourth Amendment by entering the suspect’s home the second time rather than attempting to accommodate her disability. The Court instead, rested its holding on the fact that the law was not clearly established at the time of the events, thereby entitling the officers to qualified immunity. In so holding, the Court reversed the decision of the Ninth Circuit, admonishing that court that it has “repeatedly told courts – and the Ninth Circuit in particular – not to define clearly established at a high level of generality…Qualified immunity is no immunity at all if ‘clearly established’ law can simply be defined as the right to be free from unreasonable searches and seizures.” The Court explained that under the circumstances, a reasonable officer could have concluded that the second entry into Sheehan’s home was justified both under the continuous search rationale and the exigent circumstances rationale.


Filed December 22, 2014 (Merits-stage brief; SCOTUS)
City of Los Angeles v. Patel 
No. 13-1175
Pro Bono Author: Thomas McCarthy

Held: Los Angeles Municipal Code § 41.49, which requires hotel operators to record and keep specific information about their guests on the premises for a ninety-day period and to make those records available to "any officer of the Los Angeles Police Department for inspection" on demand, is facially unconstitutional because it fails to provide the operators with an opportunity for pre-compliance review.

Los Angeles Municipal Code § 41.49 requires hotel and motel operators to keep specific information about their guests like their name, address, room number, and information about their vehicle parked at the hotel. Section 41.49 also states that hotel guest records “shall be made available to any officer of the Los Angeles Police Department for inspection.” In a facial challenge to the ordinance, motel operators objected to § 41.49 authorizing warrantless inspection of guest records.

The Ninth Circuit ruled in favor of the motel operators in this case. The majority concluded that § 41.49 is facially unconstitutional because it fails to expressly provide for pre-compliance judicial review before the police can inspect the registry. The Ninth Circuit noted that the “procedural deficiency” with the ordinance affected all searches authorized by that ordinance and therefore there are “no circumstances in which the record-inspection provision may be constitutionally applied.” Both dissenting opinions agree that the ordinance in this case isn’t facially invalid because the standard for facial invalidity is so high and the motel operators failed to meet it. The challenger must establish that the ordinance would not be valid under any set of facts.

The issues before the Supreme Court are: (1) Whether facial challenges to ordinances and statutes are permitted under the Fourth Amendment; and (2) Whether a hotel has an expectation of privacy under the Fourth Amendment in a hotel guest registry where the guest-supplied information is mandated by law and an ordinance authorizes the police to inspect the registry, and if so, whether the ordinance is facially unconstitutional under the Fourth Amendment unless it expressly provides for pre-compliance judicial review before the police can inspect the registry.


Filed November 21, 2014 (Merits-stage brief; SCOTUS)
Reed v. Town of Gilbert
No. 13-502
Pro Bono Author: William Brinton

Held: The provisions of a municipality’s sign code that impose more stringent restrictions on signs directing the public to the meeting of a non-profit group than on signs conveying other messages are content-based regulations of speech that cannot survive strict scrutiny.

After receiving an advisory notice that its signs announcing the time and location of church services were displayed for a longer time period than the Town of Gilbert’s Sign Code allowed, the Good News church sued Gilbert claiming the Sign Code violates the Free Speech Clause of the First Amendment. Gilbert’s Sign Code includes temporary directional signs related to qualifying events, political signs, and ideological signs. Good News church’s signs were temporary directional signs; such signs receive the less favorable treatment (in terms of size, location, duration, etc.) than political signs and ideological signs.

The Ninth Circuit held that Gilbert’s Sign Code does not violate the First Amendment. A majority of the court concluded the distinctions between the three sign categories are content-neutral because all signs in each category are treated the same regardless of their content even if the three categories of signs are treated differently: “[E]ach classification and its restrictions are based on objective factors relevant to Gilbert's creation of the specific exemption from the permit requirement and do not otherwise consider the substance of the sign. Each exemption is based on objective criteria and none draws distinctions based on the particular content of the sign. It makes no difference which candidate is supported, who sponsors the event, or what ideological perspective is asserted.”

The issue before the Court is whether the Town’s mere assertion that its sign code lacks a discriminatory motive renders its facially content-based sign code content-neutral and justifies the code’s differential treatment of petitioners’ religious signs.


Filed October 16, 2014 (Merits-stage brief; SCOTUS)
Perez v. Mortgage Bankers Association
No. 13-1041
Pro Bono Author: Ashley Johnson
Held: The Paralyzed Veterans doctrine is contrary to the clear text of the Administrative Procedure Act’s rulemaking provisions. An agency is not required to use notice-and-comment procedures to amend or repeal an interpretive rule.

In 2006 the Department of Labor (DOL) issued an opinion letter concluding that mortgage loan officers do not have to be paid overtime if they work more than 40 hours a week. In 2010 the DOL issued an Administrator’s Interpretation saying the opposite and withdrawing the 2006 opinion letter. The Mortgage Bankers Association, who represents over 2,200 real estate finances companies, sued DOL claiming that if DOL wanted to make this change it had to conduct notice and comment rulemaking.

The D.C. Circuit’s rule is that if an interpretive rule is “definitive” and an agency makes a “significant change” to it, the agency must conduct notice and comment rulemaking. The D.C. Circuit ruled that reliance on a rule is not a separate element in the analysis. There is a circuit split over whether changes to interpretive rules require notice and comment. The Supreme Court will decide whether a federal agency must engage in notice-and-comment rulemaking pursuant to the Administrative Procedure Act before it can significantly alter an interpretive rule that articulates an interpretation of an agency regulation.


 Filed September 16, 2014 (Merits-stage brief; SCOTUS)

Alabama Department of Revenue v. CSX Transportation
No. 13-553
Pro Bono Author: Sarah Shalf

Held: The Court reversed the Eleventh Circuit and remanded to determine whether Alabama’s fuel-excise tax is the rough equivalent of the state’s sales tax that is applied to diesel fuel and would therefore justify the motor carrier tax exemption.

The Railroad Revitalization and Regulation Reform Act (4-R) prohibits states from taxing railroads in a discriminatory manner. In Alabama, railroads pay a 4% sales tax on diesel fuel, trucks pay a 19 cents per gallon excise tax, and water carriers pay no tax.. The Eleventh Circuit ruled Alabama violated 4-R. It compared CSX to competitors only and did not include the excise tax trucks pay when comparing their taxation to railroads. The issues before the Supreme Court are: (1) Whether a state “discriminates against a rail carrier” in violation of 49 U.S.C. § 11501(b)(4) when the state generally requires commercial and industrial businesses, including rail carriers, to pay a sales-and-use tax but grants exemptions from the tax to the railroads’ competitors; and (2) whether, in resolving a claim of unlawful tax discrimination under 49 U.S.C. § 11501(b)(4), a court should consider other aspects of the state's tax scheme rather than focusing solely on the challenged tax provision

The Court held: (1) that the comparison class for purposes of determining whether a tax exemption discriminates against railroads can be either the general class of commercial and industrial taxpayers or the railroad’s direct competitors (e.g., truckers). (The Court left open whether any “other comparison classes may qualify.”); (2) a state “does not discriminate unless it treats railroads differently from other similarly situated taxpayers without sufficient justification” — and a “comparable tax levied on a competitor may justify not extending that competitor’s exemption from a general tax to a railroad.” The Court remanded to allow the Eleventh Circuit to assess whether Alabama “can justify its decision to exempt motor carriers from its sales and use tax through its decision to subject motor carriers to a fuel-excise tax”; and whether it can justify its exemption of water carriers from both taxes.


Filed August 25, 2014 (Merits-stage brief; SCOTUS)
T-Mobile South, LLC v. City of Roswell
No. 13-975
Pro Bono Author: Tillman L. Lay
Held: The Court held that when a locality denies a request, it “must provide or make available [its] reasons, but that those reasons need not appear in the written denial letter or notice provided by the locality. Instead, the locality’s reasons may appear in some other written record so long as the reasons are sufficiently clear and are provided or made accessible to the applicant essentially contemporaneously with the written denial letter or notice.” 

T-Mobile applied to construct a cell tower in the City of Roswell, Georgia in an area zoned single-family residential. The City’s ordinance only allowed “alternative tower structures” in such zones that were compatible with “the natural setting and surrounding structures.” T-Mobile proposed an “alternative tower structure” in the shape of a man-made tree, but it would be about 25-feet taller than the pine trees surrounding it. The city council voted against the application after a hearing. City councilmembers stated various reasons for why they intended to vote to deny the application. Additionally, there was a lot of vocal opposition to the construction of the tower at the meeting from citizens of Roswell. The City sent T-Mobile a brief letter saying that it denied T-Mobile’s application and that T-Mobile could obtain the hearing transcript and meeting minutes, which set forth its reasons for the denial.

The Telecommunications Act of 1996 (TCA) requires that permit denials for cell towers be “in writing.” The district court and other Circuit Courts have held that the TCA requires a written decision and a written record that explain why the city council’s majority rejected the application. The Eleventh Circuit disagreed relying on a plain reading of the statute. The statute does not say that “the decision [must] be ‘in a separate writing’ or in a ‘writing separate from the transcript of the hearing and the minutes of the meeting in which the hearing was held’ or ‘in a single writing that itself contains all of the grounds and explanations for the decision.’”

The issue before the Supreme Court is whether a document from a local government stating that an application has been denied, but providing no reasons whatsoever for the denial, can satisfy the TCA’s “in writing” requirement.

Applying its holding to the facts of the case, the Supreme Court held that the City satisfied its obligation to provide its reasons by providing detailed minutes of the City Council meeting at which the tower siting application was denied; but the City breached its statutory obligation by providing those minutes 26 days after the written denial (and just 4 days before petitioner’s time to seek judicial review would have expired).


Filed August 5, 2014 (Merits-stage brief; SCOTUS)
Comptroller v. Wynne
No. 13-485
Merits author: Paul Clement & Zack Tripp
Petition-stage brief filed on November 18, 2013
Petition stage author: Erich Eiselt (IMLA)
Held: Maryland’s tax scheme is unconstitutional and violates the dormant Commerce Clause.

Maryland taxes the entire income of its residents by imposing a state income tax with two components: a State tax and a County tax. The County tax is based on where the individual is domiciled and maintains a principal residence. State law provides for a tax credit for taxes paid to other states, but this credit does not apply to offset a resident’s County tax obligation.

The Respondents are a married couple with five children residing in Howard County, Maryland. In 2006, the tax year at issue, Mr. Wynne held a 2.4% ownership interest in a Maryland Subchapter-S corporation based in Howard County. The Wynne’s object to Maryland’s taxing scheme, claiming that the County tax creates a situation of unconstitutional double taxation in violation of the dormant commerce clause. The Maryland Court of Appeals agreed and held in favor of the resident tax payers.

The Supreme Court accepted certiorari to resolve the conflict created by the Maryland Court of Appeals’ decision between a most basic principle of state sovereignty – the right of a state to tax a resident within its boundaries, which has been recognized throughout the history of the Court–and the unwritten, amorphous and arbitrary concept of “dormant” Commerce Clause jurisprudence.

In a 5-4 opinion, writing for a sharply divided Court, Justice Alito concluded that Maryland’s personal income tax scheme violates the dormant Commerce Clause. The majority concluded that Maryland’s tax scheme creates a risk of double taxation, is inherently discriminatory and that it fails the “internal consistency” test. The majority noted that the state’s tax scheme operates as a “tariff,” which the Court concluded is “fatal because tariffs are the paradigmatic example of law discriminating against interstate commerce.” (internal quotations omitted)


Filed June 4, 2014 (Merits-stage brief; SCOTUS)
Integrity Staffing Solutions, Inc. v. Busk
No. 13-433
Pro Bono Author: James Ho
Petition-stage amicus brief – Filed on November 7, 2013 
Held: The Court unanimously held that the time the employees spent waiting to undergo security screenings was not compensable under the FLSA.

Integrity Staffing Solutions provides temporary warehouse staffing to clients such as Amazon.com. In 2010, two plaintiffs filed a putative collective and class action alleging that pursuant to the FLSA, they, and hundreds of other former and current employees of Integrity, were entitled to compensation for time spent undergoing security screenings at warehouses in which they filled orders for the online retailer.

Integrity filed a motion to dismiss arguing that the time spent clearing security checks at the end of the work day is not compensable under the FLSA, as the security screenings were not “necessary and integral” to the employees’ jobs as warehouse workers. Integrity’s argument in favor of dismissal was consistent with decisions of the Second Circuit and the Eleventh Circuit.

The district court agreed with the holdings of those courts and held that even if the security checks were necessary to the employer’s goal of minimizing employee theft, plaintiffs still did not state a claim upon which relief could be granted because the security screenings were not “necessary and integral” to the employees’ jobs of order fulfillment. Plaintiffs appealed, and with respect to their claim regarding the compensability of time spent proceeding through security screenings, the Ninth Circuit reversed. The issue in this case was whether time spent in the security screenings is compensable under the FLSA. The Supreme Court held that it was not.


Filed April 9, 2014 (Merits-stage brief; SCOTUS)
Lane v. Franks
No. 13-483
Author: Matthew Delude
Held: The Court unanimously held that the First Amendment “protects a public employee who provided truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities.”

Petitioner Edward Lane accepted a job working for the Central Alabama Community College (CACC). He discovered that then-state representative Suzanne Schmitz was listed on his program’s payroll but never came to work. After numerous failed attempts to get her to come to work Lane fired her. Lane was subpoenaed to testify about his interactions with Schmitz before a grand jury and later a criminal trial. More than two years after his initial grand jury testimony and due to budget cuts CACC laid off 29 probationary employees, including Lane. All but three were called back because CACC realized many of those employees were not in fact probationary. Lane claims he was terminated for testifying against Schmitz in violation of the First Amendment.

The Eleventh Circuit disagreed and found that Lane was acting pursuant to his official job duties when he testified and therefore was not protected by the First Amendment. Other Circuits have held otherwise when it comes to speech pursuant to a subpoena.
This was the first public employment First Amendment case the Supreme Court accepted since Garcetti v. Ceballos. The issue before the Court was whether a public employee may bring a First Amendment constitutional claim for alleged retaliation for truthful sworn testimony that was compelled pursuant to subpoena.

IMLA’s brief argued that an employee who is acting as an employee and in the scope and context of employment is protected by all of the rights and benefits afforded to any employee under state and federal law, but the Constitution should not convert an employment action or dispute into a federal claim simply because the employer is a government entity. IMLA’s brief sought to convince the Court that the First Amendment is a poor vehicle to protect employees from retaliation for their testimony as it only applies public employers and leaves employees of private employers without the added protections sought by the Petitioner. Rather, IMLA argued, the host of laws that already exist should be sufficient to protect employees under these circumstances, and if not, additional laws could be passed to protect all employees from retaliation for testifying.

IMLA’s brief also pointed out that governmental employees are likely to be the most frequent witnesses and that many do so as a regular part of their job and that they should not be given a free pass to misbehave by covering their misbehavior under a blanket of First Amendment immunity. Similarly, IMLA argued that employees may admit in testimony that they abused their positions of public trust and should not be protected if they do so.

While the Court reversed the Eleventh Circuit decision which held that the speech was not protected because the employee “learned of the subject matter of his testimony in the course of his [public] employment”, the Court did affirm the Eleventh Circuit’s conclusion that the employer was entitled to qualified immunity. Although the Court did not rule in favor of the employer, IMLA believes that its amicus efforts paid off, as the Court specifically limited its ruling so as not to cover those employees who testify regularly as part of their jobs and also noted that the ruling would not protect employees who admitted to their own misconduct during testimony. As Justice Thomas pointed out in his concurring opinion, for some public employees like police, crime scene technicians, and laboratory analysts, “testifying is a routine and crucial part of their employment duties.”


Filed January 28, 2014 (Merits-stage brief; SCOTUS)
Sebelius v. Hobby Lobby / Conestoga Wood Specialties Corp. v. Sebelius
No. 13-354; 13-356
Pro Bono Author: Christine Van Aken
Oral Argument: March 25, 2014
Held: The Supreme Court concluded that RFRA’s definition of “person” includes for-profit closely held corporations, thereby invalidating the contraceptive mandate of the Affordable Care Act.

Three for-profit corporations and their owners objected on religious grounds to the Affordable Care Act’s requirement that a minimum level of health insurance includes coverage for all FDA-approved contraceptive methods. The corporations object to the requirement that they provide health insurance covering these contraceptive methods as they claim that this requirement violates their sincerely held religious beliefs under the Religious Freedom Restoration Act of 1993 (RFRA). The Third Circuit and Sixth Circuit both held that a for-profit secular corporation was not a “person” under RFRA and could therefore not engage in religious exercise under the First Amendment and RFRA while the 10th Circuit held otherwise, stating that a for-profit corporation was a “person” under RFRA, thus triggering the circuit split.

RFRA provides that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest. The corporations claim that RFRA allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation’s owners.

IMLA’s amicus brief solely focused on the argument that if the Supreme Court were to hold that a “person” under RFRA included for-profit corporations, then, given the statutory history of RFRA, RLUIPA’s definition of “person” could potentially have to include for-profit corporations. If that were the case, for-profit corporations would then be able to use RLUIPA to resist land use regulations on religious grounds, which could be onerous for local governments. Although the Supreme Court ultimately held that RFRA’s definition of “person” does include closely held for-profit corporations, Justice Ginsburg cited to IMLA’s brief in her dissent.


 

Filed January 17, 2014 (Merits-stage brief; SCOTUS)
Wood v. Moss
No. 13-155
Pro Bono Author: Bennett Cohen
Held: The Court unanimously granted qualified immunity to two Secret Service agents who moved anti-Bush protesters a block further from the President than pro-Bush supporters.

Pro- and anti-President Bush demonstrators had equal access to the President as his motorcade arrived in Jacksonville, Oregon. But when the President made an unexpected stop for dinner at the Jacksonville Inn’s outdoor patio, Secret Service agents, assisted by state and local police officers, moved the anti-Bush protesters, who were closer to the restaurant than the pro-Bush demonstrators, about one block further from the President than the pro-Bush demonstrators. The anti-Bush protesters sued two Secret Service agents claiming their First Amendment right to be free from viewpoint discrimination had been violated. The Ninth Circuit denied the agents qualified immunity.

The issue before the Supreme Court was whether the lower court evaluated the qualified immunity question in this case too generally. The Ninth Circuit focused its conclusion on whether the agents engaged in viewpoint discrimination instead of whether it was clearly established that the anti-Bush protesters could not be moved further away from the President than the pro-Bush demonstrators. The Court concluded that the agents were entitled to qualified immunity: “No decision of this Court so much as hinted that their on-the-spot action was unlawful because they failed to keep the protesters and supporters, throughout the episode, equidistant from the President.”


 

Filed January 6, 2014 (Merits-stage brief; SCOTUS)
Plumhoff v. Rickard
No. 12-1117
Pro Bono Author: Peter Keith
Held: The Court held that police officers did not violate the Fourth Amendment when they shot and killed the driver of a fleeing vehicle to end a dangerous car chase. The Court also held the officers were entitled to qualified immunity.

Police officers shot and killed Donald Rickard and his passenger after Rickard led police on a dangerous high-speed chase. Rickard wove through traffic on an interstate connecting two states, collided with police vehicles twice, and used his vehicle to escape after being surrounded by police officers, nearly hitting at least one officer. The families of Rickard and his passenger sought money damages claiming the officers violated the Fourth Amendment by using excessive force. The officers argued they should be granted qualified immunity because their use of force wasn’t prohibited by clearly established law.

The issue before the Supreme Court was whether the Sixth Circuit properly denied qualified immunity by distinguishing this case, which arose in 2004, with a later Supreme Court decision from 2007. IMLA’s brief argued that the Supreme Court should rule as follows: Officers retain qualified immunity from Fourth Amendment force claims so long as it is arguable, on the historical facts most favorable to the plaintiff, that the force was reasonable. In evaluating immunity, a court must adopt the inferences that a reasonable officer could arguably draw from the facts, regardless of whether those inferences are factual or legal. It is a legal question whether—based on the historical facts, the inferences an officer could arguably draw from them, and clearly established law—only a plainly incompetent officer could conclude that force was reasonable.

The Supreme Court concluded that the use of deadly force was reasonable because “[u]nder the circumstances at the moment when the shots were fired, all that a reasonable police officer could have concluded was that Rickard was intent on resuming his flight and that, if he was allowed to do so, he would once again pose a deadly threat for others on the road.” The number of shots wasn’t unreasonable because “if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.” The Court also held that even if the officers had violated the Fourth Amendment, they would have been entitled to qualified immunity because they did not violate clearly established law.


Filed December 23, 2013 (Merits-stage brief; SCOTUS)
Marvin M. Brandt Revocable Trust v. United States
No. 12-1173
Pro Bono Author: Charles Montange
Held: Reversed and remanded on March 10, 2014. The Court rejected the United States’ contention that Congress granted railroads more than an easement and that the government retained an implied reversionary interest in the property.

In 1875 the Federal government granted significant easements to railroad companies to build tracks across the country. For a number of reasons, many of those railroad tracks have recently become abandoned. In 1983, Congress amended the National Trails System Act (16 USC 1247 (d)) (the “Trails Act”) to allow the federal government to take back abandoned railroad easements and turn them into land for public recreation. The process is commonly referred to as “railbanking.”

The Trails Act triggered a slew of litigation against the government, with independent landowners claiming that the original grants from the 19th century did not contain a residual right of possession for the government after tracks had been abandoned. The Seventh and Federal Circuits have previously held that the United States did not retain an implied reversionary interest in the abandoned tracks. In this case, the Tenth Circuit held otherwise, triggering a circuit split.

The issue before the Court was who owns an abandoned federally granted railroad right-of-way: the United States or the land owner whose property the right-of-way runs through. Local governments typically convert abandoned railroad rights-of-way into “Rails-to-Trails.” If the Supreme Court had agreed with the Tenth Circuit, state and local governments would have benefited. A federal statute, if applicable, grants the United States title to abandoned railroad rights-of-way unless a “public highway” is established on the right-of-way within one year of abandonment. Public highways include recreational trails. The IMLA amicus brief argues that state and local governments have long relied on the federal statutes relevant to this case to build public highways in abandoned railroad rights-of-way.


Filed November 7, 2013 (Merits-stage brief; SCOTUS)

McCullen v. Coakley
No. 12-1168
Pro Bono Author: Mary Jean Dolan
Held: The Massachusetts Act providing for a 35-foot buffer-zone violated the First Amendment

This was a Massachusetts case based on the permissibility of buffer zones around abortion clinics. Specifically, Massachusetts has a law making it a crime to “enter or remain on a public way or sidewalk” within thirty-five feet of the entrance, exit, or driveway of a “reproductive health care facility.” The law exempts any employees or agents of such a clinic so long as they are acting within the scope of their employment.

Petitioners challenged the constitutionality of the law under the First and Fourteenth Amendments, arguing that it restricts the speech of “only those who wish to use public areas near abortion clinics to speak about abortion from a different point of view.” Petitioners also argued that to the extent that the Court’s Hill v. Colorado (2000) decision controls the outcome of this case, that decision should be overruled. In, Hill, the Court ruled that the First Amendment right to free speech was not violated by a Colorado law limiting protest, education, distribution of literature, or counseling within eight feet of a person entering a health-care facility.

The issues before the Court were, (1) whether the First Circuit erred in upholding Massachusetts’s selective exclusion law – which makes it a crime for speakers other than clinic “employees or agents . . . acting within the scope of their employment” to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of “a reproductive health care facility” – under the First and Fourteenth Amendments, on its face and as applied to petitioners; and (2), whether, if Hill v. Colorado, permits enforcement of this law, Hill should be limited or overruled. While the Supreme Court held that the Massachusetts law was unconstitutional, it did not explicitly overrule Hill.


 

Filed September 23, 2013 (Merits-stage brief; SCOTUS)
Sprint Communications Company v. Jacobs
No. 12-815
Pro Bono Author: Kira Klatchko
Held: That abstention did not apply

This case arose out of a telecom dispute in Iowa. Sprint refused to pay another company’s intrastate access charge for a service and asked the Iowa Utility Board (IUB) for confirmation that it was under no obligation to do so. The IUB ordered Sprint to pay, and Sprint challenged the IUB’s decision in federal and state courts simultaneously. Under the Younger abstention doctrine, the Eighth Circuit ruled that the district court should not hear the case, if at all, until the state court’s review of the IUB decision was complete.

The Supreme Court took the case to decide whether it mattered for the purposes of abstention that Sprint initially asked the IUB for approval—a remedial proceeding— or if Younger abstention only applies where the state brings a party before the court or administrative board in a coercive proceeding.

Most remedial proceedings happen on the local level and involve zoning variances: for example, the denial of gun permits, and the like. The question was whether a federal court should be able to review this type of decision immediately or whether it should abstain until the state proceedings have ended.


Filed September 3, 2013 (Merits-stage brief; SCOTUS) 

Township of Mount Holly v. Mt. Holly Garden Citizens in Action
No. 11-1507
Pro Bono Author: Kevin Decker
Status: Settled on November 13, 2013

The issue in this case was whether disparate impact claims are cognizable under the Fair Housing Act (FHA). If the Court were to reach such a conclusion, local municipalities would be subject to plaintiff suits for the unintended adverse impacts of their housing and redevelopment policies on minority populations.

Mount Holly Gardens is a section of the Township of Mount Holly in Central New Jersey. The neighborhood consists of about 300 brick units, originally constructed in the 1950s for military housing. In recent years the neighborhood had fallen into a period of decline, experiencing problems with absentee landlordism, and abandoned units. Many of the existing houses had been boarded up to prevent stripping of their valuables and piping. The area also became plagued with drug dealing and criminal activity. In 2002 the township declared the neighborhood blighted and in need of redevelopment.

From the start, the city’s plans for redevelopment were surrounded by a cloud of suspicion and distrust. Residents feared that they would be forced out of their neighborhoods because the proposed plans failed to provide for a sufficient number of rehabbed units and new affordable housing units. In 2003, residents who were predominately African American or Hispanic filed suit under the FHA, alleging that the redevelopment had a disparate impact on minority citizens who would be forced to vacate their neighborhood.

The town’s redevelopment plan called for the neighborhood to raze 329 roughhouses to make way for 228 apartments, 292 townhouses, and 54,000 square feet of commercial space. The plan included provisions to allocate about 10 percent of the neighborhood for affordable housing, which is consistent with the state Council on Affordable Housing Standards. In September 2011, the Third Circuit ruled that the redevelopment plan may have been discriminatory, and in violation of the FHA, even if that was not the township’s intent.


Filed March 25, 2013 (Brief on the Merits; SCOTUS)
American Trucking Associations, Inc. v. City of Los Angeles
No. 12-52
Pro Bono Author: Michael Burger
Status: Reversed and Remanded on June 13, 2013.

The American Trucking Association filed suit against the City and Port of Los Angeles over a policy that restricted certain drayage trucks from using the Port. Drayage vehicles are not hired by the Port; instead, shipping companies and transportation companies hire the drayage vehicles to ply their trade at the port. The policy at issue includes an order that effectively banned drayage vehicles from the port by prohibiting terminal operators from allowing drayage vehicles to use port facilities if the operators did not have a concession agreement. The Concession plans created a direct contractual agreement between the Port and the motor carriers providing drayage services.

The issue before the Court was whether a number of the Port’s concession agreements are preempted by the FAA Authorization Act, specifically, 49 U.S.C. § 14501(c)(1), which provides that “a State [or] political subdivision…may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier…with respect to the transportation of property.” The Port argued that this section of the law contains an unexpressed “market participant” exception, which permits a municipal governmental entity to take action that occurs in a market in which the municipality does not participate, and is unconnected with any interest in the efficient procurement of services. The Court held that the FAAAA expressly preempts provisions in the concession agreements.


Filed February 27, 2013 (Brief on the Merits; SCOTUS)
Dan’s City Used Cars, Inc. v. Pelkey
No. 12-52
Pro Bono Author: Sarah M. Shalf
Status: Affirmed against federal preemption on May 13, 2013

Robert Pelkey’s landlord towed Pelkey’s car when he failed to move it during a snowstorm in violation of his landlord’s parking policy. Pelkey was seriously ill at the time and did not learn about his car being towed until he returned from the hospital. When Pelkey’s attorney contacted Dan’s City Used Cars the towing company lied and said his car had been sold at public auction and never remunerated Pelkey for his loss. Pelkey brought a number of state claims against his landlord and Dan’s City Used Cars related to the incident.

The lower court concluded that the Federal Aviation Administration Authorization Act (“FAAAA”) preempted the state’s consumer protection laws, state towing liens and the common law of bailment insofar as each protected Pelkey’s interests. The Court accepted certiorari to decide whether such causes of actions against a tow-motor carrier based on state law regulating the sale and disposal of a towed vehicle were related to a transportation service provided by the carrier and were thus preempted by the FAAAA.


 Filed February 19, 2013 (Brief on the Merits; SCOTUS)

Horne v. USDA
No. 12-123
Pro Bono Author: John D. Echeverria
Status: Reversed and Remanded on June 10, 2013

Since the 1930’s the United States Department of Agriculture (USDA) has attempted to stabilize raisin prices through a marketing program which requires that a percentage of every year’s annual crop be kept off the market. This rule applies to “handlers” of the raisins, but not to the grape growers themselves. The grower typically grows and dries the grapes, and then delivers the raisins to a handler for packaging and shipping. A group of operators in California were accused of trying to circumvent the marketing limitation and the reserve pool requirement. Instead of selling the raisins to “handlers,” they set up their own processing operations where they processed their own raisins, as well as other raisins sold to them by other growers, for market distribution.

This case is relevant to municipal attorneys because the operators claim that they have a right to raise the takings issue as a defense to the enforcement of the marketing program. The Court held that a farmer who is deemed to have violated an agricultural marketing order, is fined, and seeks to argue that the fine is an unconstitutional “taking” can bring his “takings” claim in a regular federal district court without first paying the fine, nor is he required to bring that claim in the Court of Federal Claims.


Filed February 15, 2013 (Merits-stage brief; SCOTUS) 

Madigan v. Levin
No. 12-872
Pro Bono Author: Thomas J. Davis
Status: The writ of certiorari was dismissed as improvidently granted in a per curiam opinion on October 15, 2013.

Harvey Levin worked as an Illinois Assistant Attorney General. When he was terminated from this position he had been employed for six years and was over sixty years old. Levin sued the State of Illinois, the Office of the Illinois Attorney General, and the Attorney General in her individual capacity under the Age Discrimination in Employment Act (ADEA), and Section 1983. When the state sought to dismiss the 1983 claim as being displaced by the ADEA claim, the Seventh Circuit refused the request and held that they were not mutually exclusive causes of action.

The practical effect for local governments and governmental employers is that the ADEA provides some requirements for suit that the Section 1983 claims lacks. By allowing Section 1983 age discrimination claims and ADEA claims to co-exist, plaintiffs are given an alternative means for bringing ADEA-type claims without ADEA procedures. The issue before the Court was whether the Seventh Circuit erred in holding that state and local government employees may avoid the ADEA’s comprehensive remedial regime by bringing age discrimination claims directly under the Equal Protection Clause and Section 1983.


Filed January 30, 2013 (Brief on the Merits; SCOTUS)
McBurney v. Young
No. 12-17
Pro Bono Author: Stuart A. Raphael
Status: Affirmed in favor of Virginia FOIA-style law on April 29, 2013

Two non-Virginians, McBurney and Hurlbert, were denied access to records held by Virginia state agencies, because of a “residents-only” limitation which regulates access to most agencies in Virginia. McBurney, a citizen of Rhode Island, wanted to know why there was a nine-month delay in his collecting child support after his former wife defaulted on her obligation, and requested all information related to him, his son, his ex-wife, and his case and the handling of child support cases when one spouse lives abroad. Hurlbert, a citizen of California, operates a business which requests real estate tax assessment records for clients from state agencies. He sought assessment records for certain real estate parcels in Henrico County, Virginia. Both were denied access to records because they aren’t citizens of Virginia.

McBurney and Hurlbert filed suit seeking to have the Virginia FOIA-style law invalidated because the law limited the right of access to public records to “citizens” of the state. The issue before the Court was whether, under the Privileges and Immunities Clause of Article IV and the dormant Commerce Clause of the United States Constitution, a state may preclude residents of other states from enjoying the same right of access to public records that the state affords its own residents.


Filed December 28, 2012 (Brief on the Merits; SCOTUS)
Koontz v. St. Johns River Water Management District
No. 11-1447
Pro Bono Author: John D. Echeverria
Status: Reversed and Remanded June 25, 2013

Koontz sought a permit to develop part of his property that was contained within the Riparian Habitat Protection Zone, which is subject to the jurisdiction of the St. Johns River Water Management District. St. Johns asked Koontz to deed the rest of his land to St. Johns and perform off-site mitigation by either replacing culverts about five miles from his property or plugging drainage canals on other property seven miles away. Koontz agreed to deed the rest of his land to St. Johns but wouldn’t agree to the off-site mitigation. So, St. Johns never issued him a permit. Koontz sued St. Johns for a temporary taking and was awarded almost $400,000.

The Court will decide (1) whether a land-use agency can be held liable for a taking when it refused to issue a land-use permit on the sole basis that the permit applicant did not accede to a permit condition that, if applied, would violate the essential nexus and rough proportionality tests set out in Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), and (2) whether the nexus and proportionality tests set out in Nollan and Dolan apply to a land-use exaction that takes the form of a government demand that a permit applicant dedicate money, services, labor, or any other type of personal property to a public use.


Filed November 19, 2012 (Brief on the Merits; SCOTUS)
City of Arlington v. FCC
Nos. 11-1545 & 11-1547
Pro Bono Author: Paul D. Clement
Status: Affirmed in favor of City of Arlington on May 20, 2013

The issue before the Court was whether an appellate court properly granted the Federal Communications Commission (FCC) Chevron deference in affirming the agency's authority to set “shot clocks” for state and local governments to approve or deny cell tower-siting applications. The FCC and the wireless industry argue the order in question is entitled to the highest degree of deference (defer to agency interpretations of statutes unless they are unreasonable), known as Chevron deference after the 1984 Supreme Court decision, Chevron v. Natural Resources Defense Council. The petitioners, including the cities of Arlington and San Antonio, Texas, assert Chevron deference should not be allowed.

Note: IMLA was accorded Intervenor status in the Fifth Circuit and therefore has party status in this case at the Supreme Court.


Filed September 13, 2012 (Brief on the Merits; SCOTUS)
L.A. Cnty. Flood Control Dist. v. NRDC
No. 11-460
Pro Bono Author: Sarah Shalf
Status: Reversed and Remanded January 8, 2013

To control flooding and prevent potential property damage, The City of Los Angeles, like many cities across the country, created a network Municipal Separate Storm Sewer System (MS4s). These channelized improvements to surface water flow are necessary to prevent catastrophic losses in the event of a natural disaster. The Ninth Circuit recently held that these man-made improvements constitute a “point source” under the Clean Water Act, even when they do not divert or alter the water source in any way, but merely channelize it for flood prevention. This redefinition of what constitutes a “point source” conflicted with prior Supreme Court case law, and it opened municipal governments operating MS4 waterways to strict liability for any discharge that passes through their gates, regardless of whether the discharge occurred upstream and outside of their control. The ruling placed cities in the untenable position of having to assume liability for all pollutants flowing through the MS4s they maintain, or forego developing flood control systems that protect the lives and property of their citizens.

The Supreme Court held that the Clean Water Act does not regulate movement of water from one part of a river, through a concrete channel, into a lower portion of the same river.


Filed September 4, 2012 (Brief on the Merits; SCOTUS)
Arkansas Game and Fish Commission v. U.S.
No. 11-597
Pro Bono Author: John D. Echeverria
Status: Reversed and Remanded December 4, 2012

The issue in the case involved the question of whether a taking occurs when the federal government repeatedly releases water from a dam that floods property downstream. In this case, the Commission argued that the flooding was not temporary as it occurred over a period of six years and resulted in the loss of timber valued at nearly six million dollars. The federal government took the position that being a downstream riparian owner requires the property owner to accept certain burdens with the benefits of riverside ownership, including getting flooded from time to time. The Fifth Circuit, which ruled for the United States, did not go quite so far, but concluded that a property owner could not recover under the Takings Clause for a temporary invasion of property.

On December 4, 2012, the Supreme Court decided that when the government makes a decision to release water from a retaining dam, it can be sued even if the downstream flooding is temporary in duration, provided it causes sufficient damage that is traced to the decision to release.


Filed February 06, 2012 (merits-stage brief)
Armour v. City of Indianapolis READ BRIEF HERE
Pro Bono Authors: Lowell Schiller, Quin Sorenson & John Meiser
Held: Because the city had a rational basis for its distinction between homeowners who had paid their taxes in a lumpsum and those who paid over time by installments, the city’s refusal to provide a refund to those who paid in a lump sum did not violate the Equal Protection Clause.

A group of property owners brought an equal protection claim against the City of Indianapolis due to the City's decision to provide tax relief only on a prospective basis. Prior to 2005, the City would finance sewer projects by apportioning the costs to property owners. The City allowed owners to pay in full or by installments (10, 20, 30 year options). At some point, the City decided to move away from this method of financing and moved to a completely different system and made the decision to forgive the remaining amounts owed under the old system. However, the affected owners had not all paid the same amount since some homeowners had paid in full while some had opted for the longest term financing possible.
IMLA submitted a brief in this case to emphasize that the City's actions meet the rational basis standard. Cities have reasonable, legitimate and even compelling reasons for differentiating between tax refunds and prospective tax relief.


Filed January 2012 (merits-stage brief)

Reichle v. Howards READ BRIEF HERE
No. 11-262

IMLA signed on with the State and Local Legal Center on a case with the following question: Is a person who is arrested upon probable cause barred from bringing a First Amendment retaliatory arrest claim against the arresting officer? In this case, Steven Howards was visiting an outdoor shopping mall when he found out that Vice President Dick Cheney would be making an appearance. Undercover Secret Service was on the scene, and one member of the team overheard Howards speaking into his cell phone, "I'm going to ask him how many kids he's killed today." Mr. Howards did approach the Vice President, touched him on the shoulder, and told him his policies in Iraq were disgusting.

Howards walked away, but he was stopped by Agent Reichle. Agent Reichle asked Howards if he had touched the Vice President. Howards responded untruthfully that he hadn't and tried to walk away. Howards was arrested for harassment, held for a few hours, and released.

Howards brought an action against the Secret Service agents alleging that he was arrested without probable cause in violation of the Fourth Amendment and in retaliation for the exercise of his First Amendment rights. The Court of Appeals for the Tenth Circuit ruled that the agents were entitled to qualified immunity on the Fourth Amendment claim, as Howards had lied (which in this case, triggered a federal statute). However, the Tenth Circuit held that Howards could pursue a First Amendment retaliatory arrest claim despite the fact that agents had probable cause to arrest Howard.

The Court held that the two Secret Service agents were entitled to qualified immunity from suit because, at the time of the arrest, it was not clearly established that an arrest supported by probable cause could give rise to a First Amendment violation.


Filed December 28, 2011 (merits-stage brief)
Magner v. Gallagher READ BRIEF HERE
Pro Bono Authors: Kevin Decker & Amie Penny
Status: This case was dismissed by both sides by agreement

Like many cities, St. Paul has a property maintenance code which establishes minimum standards for all structures, including provision on light, ventilation, heating, sanitation, fire safety, etc. In 2002, St. Paul's Department of Neighborhood Housing and Property Improvement (DNHPI) increased the level of code enforcement and targeted rental properties. DNHPI employed a number of strategies, including issuing orders to abate conditions, condemnations, vacant-building registrations, fees for excessive consumption of municipal services, and if necessary, court action.

Plaintiffs in this case were landlords, with portfolios ranging from one to over forty properties. These landlords received the code enforcement citations. Plaintiffs claimed that they suffered increased maintenance costs and fees because of code enforcement. The 8th Circuit Court of Appeals held that these landlords could bring a disparate impact claim under the FHA, because the increased cost of repaid tended to increase rents, thereby disproportionately reducing the housing options for people of color. Plaintiffs were not required to show that the policy or practice was formulated with discriminatory intent; they simply had to show that "a facially neutral policy had a significant adverse impact on members of a protected minority group."


 

Filed November 21, 2011 (merits-stage brief)
Filarsky v. Delia READ BRIEF HERE
Pro Bono Author: Geoffrey Eaton
Held: A private individual temporarily retained by the government to carryout its work is entitled to seek qualified immunity from suit under Section 1983

Delia brought a Section 1983 action against, the City of Rialto, a number of its employees, and importantly in this case, a private attorney hired to conduct an interview with Delia. Delia alleged a violation of his Fourth Amendment rights, and the 9th Circuit granted qualified immunity to all the defendants, EXCEPT for the private attorney, Filarsky. Because Filarsky is not a government employee, the 9th Circuit ruled that there was no special reason to extend governmental immunity to private parties similarly situated. IMLA participated in this case because local government entities rely on outside counsel regularly in performing day-to-day activities and for roles that are very specific in nature. Private lawyers who are acting on the government's behalf should not be denied the protections while they are working side-by-side with government lawyer, simply because they are not employed by the local entity. A ruling against Filarsky would certainly have the consequence of affecting a government entity's ability to retain high-quality counsel and would also likely increase municipal costs in a time when localities can least afford additional financial burdens. IMLA signed onto an amicus brief submitted by the National School Boards Association.


 

Filed September 16, 2011 (merits-stage brief)
Rehberg v. Paulk READ BRIEF HERE
Pro Bono Author: Lawrence Rosenthal
Held: A witness in a grand jury proceeding is entitled to the same absolute immunity from suit under Section 1983 as a witness who testifies at trial.

Rehberg sent a number of anonymous faxes to a local hospital, criticizing the management of the hospital. Paulk was a public investigator in the District Attorneys office who started investigating Rehberg as a "favor" to the hospital. Eventually, Rehberg was indicted three times by a grand jury, where Paulk was the only or one of two witnesses in front of the grand jury. Each time, Rehberg successfully challenged the grand jury indictment and the indictments were dismissed. Rehberg brought a Section 1983 action against, among others, Paulk for malicious investigation/prosecution and claiming that his Fourth Amendment rights were violated because he had been arrested under the "malicious" indictments. The Question Presented in front of the Supreme Court is an interesting one: "Whether a law enforcement official sued for an allegedly unreasonable search and seizure resulting from testimony in front of a grand jury that allegedly failed to provide probable cause should be denied testimonial immunity on the theory that the official is properly analogized to a complaining witness who could be sued at common law for the tort of malicious prosecution."


Filed August 25, 2011 (merits-stage brief)
Florence v. Brd. of Chosen Freeholders of County of Burlington READ BRIEF HERE
Held: Jail strip searches do not require reasonable suspicion, at least so long as the arrestee is being admitted into the general jail population

IMLA signed on to an amicus effort headed by the City and County of San Francisco. In short, the issue is whether or not a visual strip search for an arrestee before being placed with the general jail population (regardless of pretrial, conviction, offense type) is constitutional under the Fourth Amendment. In 1979, the Supreme Court decided Bell v. Wolfish, 441 U.S. 520 (1979), which upheld a jail policy requiring a visual strip search of every inmate (pretrial and convicted) after every contact visit from a person outside the jail. Since Bell, some circuits now hold that arrestees charged with minor offenses may not be strip searched unless the prison has a reasonable suspicion that the arrestee is concealing a weapon or other contraband. IMLA believes that to ensure the safety of jail personnel, visitors, other inmates, local jail official need to be able to visually strip search arrestees before they enter the general jail population.


Filed March 31, 2011 (merits-stage brief)
Nevada Ethics Commission v. Carrigan READ BRIEF HERE
Pro Bono Authors: David Barber, Ashley Martinez, Elisabeth Kaylor, Molly Shortall (Arlington City Attorney's Office)
Holding: The Nevada Ethics in Government Law, which prohibits a legislator who has a conflict of interest from both voting on a proposal and from advocating its passage or failure, is not unconstitutionally overbroad.

Carrigan was an elected councilmember. In 2005, the city held public hearings regarding a proposed large-scale casino/hotel development. One of the consultants for the casino was also Carrigan's former campaign manager. Carrigan solicited the City Attorney on how to handle the situation. The City Attorney recommended that Carrigan did not need to abstain from voting, but he did need to disclose his prior relationship with the consultant, which he did. The Nevada Ethics Commission censured Carrigan for not recusing himself, basing its decision on a Nevada law that required elected officials to abstain from voting in situations with the following relationships: 1) another member of the official's household; 2) someone related by blood or marriage; 3) an employer; 4) engaged in a business relationship; and 5) a relationship 'substantially similar' to the first four relationships. It was this "catch-all" category that was used to reprimand Carrigan. Carrigan brought a challenge under the First Amendment, claiming that the ethics law violated his protected political speech, was overbroad, vague and constituted a prior restraint. IMLA participated in favor of Carrgian in this case because we felt that the law was too vague, and confuses officials (and the local government attorneys who advise them) as to when to abstain from voting.


Filed February 7, 2011 (merits-stage brief)

Fox v. Vice READ BRIEF HERE
Pro Bono Author: Pierre Bergeron
Held: When there are both frivolous and non-frivolous claims in a plaintiff's civil rights suit, a court may grant reasonable attorney's fees to the defendant, but only for costs that the defendant would not have incurred but for the frivolous claims.

The Town of Vinton Louisiana was part of Section 1983 action in suit arising out of a heated election for Chief of Police. A federal court ultimately ruled that all of the plaintiff's federal claims were frivolous but there were other state law claims deemed not frivolous. The Town then sought and won attorneys fees on the frivolous claims. Mr. Fox appealed, claiming that the Town was not a "prevailing defendant" because there were still state law claims yet to be resolved. IMLA joined this case arguing that the fees here were properly awarded -- both because the inclusion of even one non-frivolous claim does not insulate a plaintiff from attorney fee liability for frivolous claims, and because the lower court had properly attributed the fees to the frivolous claims. IMLA joined this case because if Mr. Fox prevailed in this case, a plaintiff need only include one non-frivolous claim and can include numerous frivolous claims and still emerge unscathed from attorney fee liability. Cities fiscal resources are limited, and while cities accept the responsibility of defendant non-frivolous claims, taxpayers should not have to pay for cities to defend clearly frivolous claims.


 

Petition Stage Supreme Court

 

Filed ___, 2017 (Supreme Court Petition Stage)
Filed February 16, 2017 (Texas Supreme Court)
Pidgeon v. Mayor Turner & City of Houston
No.14-56421 / 14-56514
Pro Bono Author: Heidi Bloch
Held: The Texas Supreme Court remanded the case for further proceedings and did not rule on the substantive issues

The City of Houston offered benefits to same-sex spouses of City employees legally married in other jurisdictions prior to the Supreme Court’s decision in Obergefell v. Hodges (which held that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state).

Private citizens brought suit as taxpayers against the City, seeking to prevent it from doing so. A Texas district court entered an injunction against the City and ordered the City to discontinue the benefits. The City appealed, which stayed the order. While it was on appeal, the Supreme Court decided Obergefell. The City then argued the case was moot in light of the Supreme Court’s decision and the appellate court agreed, reversing the district court’s original decision and remanding it for proceedings consistent with Obergefell.

The case went up to the Texas Supreme Court and the City argued a number of procedural infirmities. Ultimately the Texas Supreme Court denied the petition for review, on jurisdictional grounds. The Texas Supreme Court’s denial for review would have sent the case back to the trial court and ultimately would have resulted in its dismissal. However, the appellants filed a petition for rehearing and a number of amici came in supporting them, including a number of state legislators. The amici argued that Obergefell only held that same-sex couples have a constitutional right to marry, and that it did not invalidate laws that provide more benefits to heterosexual couples. They also argue that Obergefell should not apply retroactively.

The Texas Supreme Court thereafter granted the petition for rehearing.

The issues on appeal were:
1. Should Obergefell be extended narrowly as the appellants claim i.e., does Obergefell extend beyond the state’s requirement to simply issue marriage licenses and thus require employers to offer the same benefits to same-sex couples as are offered to heterosexual couples
2. Does the Supreme Court’s decision in Obergefell retroactively apply to benefits the City of Houston provided to its employees for same-sex spouses married outside of the state?

In addition to the issues related to the applicability of Obergefell, IMLA’s amicus brief focused on local government autonomy. The Texas Supreme Court did not decide the substantive issues, but instead remanded the case. The City is petitioning the Supreme Court for certiorari and IMLA will file another amicus brief in support of the City.


Filed October 10, 2017 (Supreme Court Petition Stage)
Park v. Thompson
No. 17-294
Pro Bono Author: Timothy Coates

Kelly Park was tried by the state of California for the murder of Juliana Redding. Part of Park’s defense strategy was to identify another suspect, Gilmore, as the possible killer. Park identified a witness, Ayala, who was Gilmore’s former girlfriend. According to Park, Ayala would have testified that her then-boyfriend choked her on three occasions stating something to the effect of “do you want to see how Redding felt?” while he choked her. In her Complaint, Park claims that Thompson, the lead detective on the case, dissuaded Ayala from testifying by telling her that Gilmore was going to be upset about her statements and that she did not have to talk to the defense / testify, but that if she was subpoenaed, she would have to appear and tell the truth.

The Plaintiff also claims (“on information and belief”) that Thompson and/or other defendant police officers told another police department to file charges against Ayala for assault and criminal threats against Gilmore based on a prior incident. Park claims that Thompson did this so that Park would invoke the Fifth Amendment if she was called to testify. At trial, Ayala invoked the Fifth Amendment and refused to testify and thereafter, the judge ruled that Park could not pursue her third-party culpability theory at trial (because she had no other witnesses / evidence).

Before the trial began, Park moved to dismiss the indictment due to Thompson’s behavior. The criminal trial court held a hearing on the issue and found no misconduct (and witnesses all testified that Thompson had nothing to do with the criminal charges being brought against the witness). After the trial, Park was acquitted of all charges by a jury and she had been out on bail and had remained free pending trial.

Park sued the lead investigator, Detective Thompson, under 42 U.S.C. § 1983 for violating Park’s right to a fair trial because she alleged Thompson intimidated and dissuaded a witness from testifying for the defense. Park also alleged that Thompson and others conspired to prevent the witness from testifying by orchestrating criminal charges against the witness to force her to invoke her Fifth Amendment rights and refuse to testify. Because she was acquitted, she expressly sought no damages for malicious prosecution or incarceration pending trial. Instead, she claims emotional distress damages because she alleges her acquittal was far less certain without the witness and she believes the jury would have deliberated for far less time.

The District Court dismissed both § 1983 claims, but the 9th Circuit panel reversed. The panel majority (there was a dissent) held that the plaintiff adequately alleged substantial interference with a defense witness in contravention of the Compulsory Process Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment. The fact that plaintiff was eventually acquitted did not render the witness testimony immaterial, according to the Ninth Circuit, nor did it bar plaintiff’s § 1983 action stemming from violations of her rights during the underlying criminal investigation and prosecution. The court reasoned that the underlying question was whether the defendant was deprived of a fair trial, and the fact that the person was ultimately acquitted “has little to do with whether the trial was fair.” Finally, the panel majority held that plaintiff pleaded sufficient facts to state a plausible claim for civil conspiracy under § 1983. The City sought en banc review, which was denied.

The central issue in the City’s petition for certiorari is whether a constitutional violation can be established without a showing that suppressed evidence was “material” based on a showing that there was a reasonable probability of a different trial result had the evidence been admitted. Ancillary to that question is whether the evidence suppressed here could be deemed material if the defendant was acquitted of all charges. The Ninth Circuit differs from the 11th Circuit on these questions.


Filed October 7, 2017 (Supreme Court Petition-Stage)
City of Greensboro v. Woods
No.
Pro Bono Author: Allegra Collins

In 2013, the Woods, who are African American, submitted an application for a $300,000 ten-year economic development loan for their company, BNT, as part of the City’s economic development efforts. The Woods offered to secure the loan by way of a note and deed of trust to their home. The appraised value of the home was $975,000.00.

The City Council voted seven to two in favor of adopting a Resolution, which authorized the City to enter into an agreement with BNT for the $300,000 loan, which would place the City in the second loan position on the residence. The City’s Resolution, by its terms, required that the Woods have no other liens on the property, other than their first mortgage. As it turns out, the Woods also had a home equity line of credit that they did not originally disclose to the City. The City therefore considered at another council meeting, whether they should adopt a Resolution that would place them in a third lien position. Ultimately, the City voted not to modify the Resolution to make a lien secured by the third position.

The Woods and BNT filed suit, alleging violations of 42 U.S.C. § 1981 (and other claims that were not appealed). After the district court dismissed the claims, BNT alone appealed its claim that the City discriminated against it in violation of § 1981, which protects all persons from racial discrimination in making and enforcing contracts. BNT argued that the City’s refusal to make the loan was based upon stereotypes about the risk of lending to a minority business and that, at the pleading stage, its allegations suggesting the pretextual character of the City’s explanation for the denial of the loan are sufficient to survive a motion to dismiss. BNT used a study the City commissioned to try to eradicate past discrimination as evidence of discrimination in its complaint and it also alleged that similarly situated white businesses were provided loans on more favorable terms.

The City argued that under Iqbal and Twombly, BNT cannot survive a motion to dismiss because the complaint itself reveals a lawful “obvious alternative explanation” for the conduct of which they complain – specifically that they had not revealed the home equity line of credit and the City did not wish to be a third position lien holder. The City also argues that the complaint fails to state a claim because the comparators BNT relied on are not “apples to apples” comparators and therefore should not be used in the court’s analysis.

The Fourth Circuit reversed the district court’s dismissal of the claims, concluding that the key issue in this case was whether the City would contract with BNT on the same conditions and under substantially the same circumstances as it would with a nonminority-owned business. Because BNT plausibly pled that the conditions under which the City was willing to grant it a loan were more stringent than those the City applied to similarly situated white-owned applicants, the Fourth Circuit concluded that the district court erred in dismissing BNT’s claim of discrimination at the pleading stage.

In so concluding, the Fourth Circuit partially relied on a study of racial disparities in contracting with the City that the City conducted to help eradicate discrimination. The City conducted the study pursuant to the Supreme Court’s ruling in City of Richmond v. J.A. Croson Co., which requires such a study to be conducted before a governmental entity may implement a program that benefits minority groups. The Fourth Circuit concluded that the study “necessarily informs this Court’s ‘common sense’ analysis of whether BNT’s allegations are plausible.”

The dissent points out that the comparators BNT uses are not valid as they involve grant money rather than loan money or involve other factors that were not present in this case. As to the allegation that the City accepted a third-position lien as collateral for a loan for a white-owned business, the dissenting Judge notes that the loan to the white-owned business was a part of a new incentive program offered to a local developer, rather than an economic development loan to a private business for goods and services. Thus, this loan was different in kind.

The question presented will focus on the Iqbal standard. Specifically, whether it is plausible to believe that a municipal government may seek to contract with a minority-owned enterprise under some conditions, yet, on account of race, avoid contracting with a minority-owned company under other conditions when there is an obvious alternative explanation for not contracting with the minority-owned business.


Filed July 5, 2017 (Supreme Court Petition-stage)
City of Phoenix v. Atencio
No. 16-1474
Pro Bono Author: Timothy Coates

In this case, Phoenix police arrested Atencio for misdemeanor assault. He was transported to Maricopa County’s Jail to be booked into custody. Although the county operates the jail, Phoenix police officers help with the booking process. When Atencio arrived at the jail, Officer Hanlon, a Phoenix police officer, was in charge of processing him for admission to the jail. Hanlon and Officer French, also with Phoenix PD observed that Atencio was confused and did not seem to understand what was happening (he may have been on methamphetamine but also may have had mental issues).

Hanlon escorted Atencio from a holding cell into the linescan room, accompanied by numerous Maricopa County officers. Once Atencio reached the linescan room, Officer Hanlon told Atencio, who was not handcuffed, to remove his shoes to put them through the X-Ray machine. He removed one, but then stated to Hanlon “You can take my shoe off for me” and crossed his arms over his chest. Hanlon then grabbed him by the wrist and twisted his arm behind his back so as to restrain him and take his shoe off him (Hanlon was worried that if Atencio was unrestrained, he would be in a vulnerable position bending over in front of him).

A struggle ensued and Atencio either passively or actively resisted (officers claim this is undisputed that he actively resisted, but the district court found he passively resisted). At this point, Officer French (Phoenix) allegedly used a brief choke hold on Atencio and took him to the ground. Thereafter, numerous other Maricopa County officers held Atencio down in what is characterized as a “dog pile.” While he was held down, a Maricopa County officer tased him while another Maricopa County officer struck him in the face numerous times. French and Hanlon from Phoenix PD were not engaged in the “dog pile” or striking or tasing him, which is undisputed and clear from the video.

After he was tased, the Maricopa County officers got handcuffs back on him. He was then carried off into the “safe cell,” again by Maricopa County officers, where officers held him down in a dog pile, while his clothes were removed. While they were removing his clothing, Hatton delivered a knee strike to Atencio’s back. By the time the officers removed his clothing, he appeared to be unconscious. However, they did not get him any medical attention and they all left his cell. French and Hanlon from Phoenix PD were not in the safe cell with these other officers during this altercation.

Almost 10 minutes later, a nurse observed him on video and noted he wasn’t breathing and she and another medical personnel went in to administer CPR. Atencio ultimately died.

The district court found that Phoenix PD officers Hanlon and French violated Atencio’s constitutional rights either based on their own conduct or the conduct of the other officers and denied summary judgment / qualified immunity. The court reasoned that an individual officer’s conduct cannot be viewed in isolation from the conduct of other officers involved in the incident. Rather, the relevant inquiry is: (1) whether any excessive force was used against the detainee, and if so, (2) whether the individual officer was either personally involved in, or was an “integral participant in,” the use of excessive force.

According to the court (and the rule in the Ninth Circuit), “integral participation” does not “require that each officer’s actions themselves rise to the level of a constitutional violation.” The court concluded that genuine fact disputes existed as to whether Hanlon and French used excessive force against Atencio because Hanlon and French actively engaged in getting Atencio to the ground via the wrist hold and choke hold and thereafter other (non-Phoenix police officers) delivered what was arguably excessive force (taser, knee strikes, strikes to his face). Even if Hanlon/French were no longer physically engaged when those blows were delivered, there was a genuine factual dispute as to whether they were integral participants in the use of excessive force. The court then denied qualified immunity.

The Ninth Circuit affirmed in part and reversed in part. With regard to Officer Hanlon, the Ninth Circuit concluded that he could not be liable for his individual conduct (wrist lock) because he could not have reasonably foreseen that it would trigger the events that resulted in Atencio’s death, but that he could nonetheless be liable for the unexpected excessive force used by the other officers after he disengaged because Hanlon’s wrist lock was instrumental in controlling Atencio and allowing the other officers to use excessive force against him. The panel denied the officers’ petition for rehearing.

The issues in this case are:

(1) Whether the Ninth Circuit’s “integral participant” doctrine improperly holds officials vicariously liable for unforeseeable acts of excessive force by other defendants, in contravention of 42 U.S.C. § 1983 and Monell v. Dep’t of Soc. Serv., 436 U.S. 658 (1978); and

(2) Whether the Ninth Circuit erred by concluding that a single circuit court case involving the unprovoked beating of a compliant pre-trial detainee “clearly established” that officers could not use a wristlock and brief chokehold to regain control of a noncompliant pre-trial detainee.


Filed April 5, 2017 (Supreme Court Petition Stage)
Town of East Hampton v. Friends of the East Hampton Airport, Inc., et. al
No. 16-1070
Pro Bono Author: Brendan Crimmins
Status: Certiorari was denied on June 26, 2017

The Town of East Hampton owns and operates an airport. The airport provides no scheduled commercial services, but instead, serves a range of private chartered helicopters and fixed-wing aircraft. Due to concerns about airport noise, the Town enacted a number of local laws seeking to address those concerns. Specifically, the Town enacted the following ordinances: (1) a mandatory curfew on all aircraft traffic, (2) an "extended" curfew for certain "noisy" aircraft, and (3) a weekly one-round-trip limit on noisy aircraft.

Various industry groups sued the Town, claiming that the ordinances were preempted by federal law. The district court entered a preliminary injunction, barring the enforcement of the weekly flight limit but declined to enjoin the other two laws.

On appeal, the Second Circuit concluded that all three laws were preempted by federal law. Specifically, the Town did not comply with the Airport Noise and Capacity Act’s (ANCA) procedural requirements, and the court concluded that those requirements are mandatory and apply to public airport operators regardless of their federal funding status. The court also determined that the Town’s failure to follow those procedures could not be deemed reasonable so as to support the proprietor exception to federal preemption under the Airline Deregulation Act, as the failure to comply with mandatory procedures under federal law is by its nature unreasonable.

In so holding, the Second Circuit claimed that it was not overruling its prior decision in National Helicopter Corp. of America v. City of New York, 137 F.3d 81 (2d Cir. 1998). In that case, the City’s restrictions on its heliport were found to be a lawful exercise of its power under the proprietor exception, despite the fact that it apparently did not comply with ANCA procedures. The Second Circuit distinguished National Helicopter, claiming that the court at the time did not consider “whether and to what extent the ANCA’s procedural requirements cabined the reasonable exercise of a municipality’s proprietary authority over airport noise, much less did it decide whether local restrictions imposed in the absence of ANCA procedures were federally preempted.” (The Town disagrees that the court did not consider the failure to follow the procedural requirements in National Helicopter, and thus believes the Second Circuit is overruling its prior decision).

The issue in the petition for certiorari was whether a municipality must comply with the ANCA’s procedural requirements, regardless of federal funding status in order to invoke the proprietor exception to federal preemption.


Filed March 30, 2017 (Supreme Court Petition Stage)
No. 16-1040
Filed October 6, 2016 (Ninth Circuit Petition for Panel Rehearing and Hearing En Banc)
No. 14-55644
Diaz v. City of Anaheim
Pro Bono Author Ninth Circuit & Supreme Court Petition Stage: Steven Renick (2017 Amicus Service Award Recipient)
Status: Certiorari was denied on May 1, 2017

Officer Bennallack testified that he was patrolling a gang controlled area of the city and that he saw Diaz, the deceased, with two other people and believed that criminal activity was likely occurring. Officer Bennallack and his partner attempted to converse with the deceased, but Diaz ran from them and as the officers gave chase Diaz acted as if he were holding something in his waistband. According to the officers, Diaz ran into a fenced area despite having other options. As a result, the officers felt Diaz was luring them into a trap. When Diaz finally stopped and turned towards them (ignoring their commands to put his hands in the air, etc.) after having just thrown something over a fence, the officer believed he had a gun and fired. While the officers did not uncover a gun, they found both a cell phone and a meth pipe. The cell phone had many pictures of the deceased holding weapons, with drugs and with money. Further, the deceased had many gang tattoos and exhibited gang signs in pictures on the phone.

After a six-day trial and upon two hours of deliberations, the jury found for the defendants. The court originally concluded that it would not bifurcate the trial and would allow evidence of gang membership in as evidence only for the damage aspect of the trial if the mother denied knowing her son was in a gang. As the trial proceeded, the gang evidence came in and the plaintiffs argued the evidence was prejudicial and further proved why the trial should have been bifurcated. A panel of the Ninth Circuit agreed, concluding that although decisions to bifurcate are usually left to the discretion of the trial judge, here, that discretion was abused.

IMLA filed an amicus brief in support of the petition for rehearing en banc and also in support of the City’s petition for certiorari.

The issues in this case were:

1. In light of this Court’s repeated admonition that appellate courts may not substitute their judgment for that of the district court concerning matters such as severance of issues at trial and admission of evidence given a district court’s superior position to assess the impact of such issues on a jury, may an appellate court find a district court abused its discretion with respect to such issues only where it identifies objective facts demonstrating that the district court acted irrationally, arbitrarily or capriciously in making its ruling?

2. In light of this Court’s repeated recognition of the principle that jurors are presumed to follow their instructions to disregard particular testimony, given a district court’s superior position to observe the impact of the instructions and evidence on the jury, may an appellate court in a civil case substitute its judgment for that of the district court in assessing whether jurors followed instructions in a particular case and ruling on a motion for a new trial, absent identifying some objective facts showing that the district court’s decision was irrational, arbitrary or capricious?


Filed February 20, 2017 (Supreme Court Petition Stage)
Filed June 27 2016 (Ninth Circuit, petition for rehearing en banc)
Flores v. San Gabriel
No.14-56421 / 14-56514
Pro Bono Author for Ninth Circuit brief: Arthur Hartinger (2017 Amicus Service Award Recipient)
Pro Bono Author for Supreme Court Petition stage brief: Shay Dvoretzky (2017 Amicus Service Award Recipient)
Status: Certiorari was denied on May 1, 2017.

The City provides a flexible benefits plan to its employees, under which the City provides a certain amount of money to each employee for the purchase of medical, vision, and dental benefits. All employees are required to use a portion of these funds to purchase vision and dental benefits. But an employee may decline to use the remainder of these funds to purchase medical benefits if the employee has proof of alternate coverage (such as through a spouse). If that is the case, the employee may receive the unused portion of the benefits as a cash payment added to the employee’s regular paycheck (“cash-in-lieu” payments). This payment appears as a designated line item on the employee’s paycheck.

At some time prior to 2003, the City determined that its cash-in-lieu of benefits payments were “benefits” that were excluded from its calculation of a recipient’s regular rate of pay. Thus, these cash-in-lieu payments were not incorporated into the City’s calculations for the purposes of overtime compensation.

The plaintiffs, police officers with the City, brought suit under the Fair Labor Standards Act, alleging that the failure to include the cash-in-lieu of benefits payments as a part of their regular rate of pay resulted in a lower amount of overtime compensation. The plaintiffs claimed the violation was “willful,” entitling them to a three-year statute of limitations instead of two and also sought liquidated damages.

The Ninth Circuit ruled that the City must include the cash-in-lieu of benefits payments in the employees’ regular rate of pay for the purposes of determining overtime. Because the City did not do so, the court held that it violated the FLSA. The Court found the cash-in-lieu payments did not fall under the exemption provided in section 207(e)(2) – such as vacation or holiday payments, or payments for travel or other expense reimbursements – and held that it is not necessary for payments to be tied to the actual hours worked or the amount of service provided to be considered compensation for purposes of calculating the regular rate. The court further concluded the payments did not fall within the exclusion under section 207(e)(4) for “contributions irrevocably made by an employer to a trustee or third person pursuant to a bona fide plan for providing … health insurance or similar benefits for employee.” The Court reversed the District Court’s rulings that the statute of limitations was limited to two years, and that the officers were not entitled to liquidated damages. The Ninth Circuit determined that the violation was willful because the City did not proffer any evidence to demonstrate that it had taken affirmative steps to ensure its initial designation of these payments as “benefits” (as opposed to compensation) complied with the FLSA and therefore the City did not act in good-faith.

The Ninth Circuit ultimately voted to deny the petition for panel rehearing and the City petitioned the Supreme Court for certiorari.

The issue was whether cash-in-lieu of benefits payments are properly excluded from the regular rate of pay under the FLSA pursuant to § 207(e)(2) because they are not compensation for hours worked.


Filed December 2, 2016 (Supreme Court- Petition Stage)
Town of Chester, New York v. Laroe Estates, Inc.
No. 16-605
Pro Bono Author: Sarah Shalf

Certiorari was granted on January 13, 2017

The original plaintiff in this case was a property developer (Sherman) who sued the Town of Chester for, among other things, an alleged regulatory taking due to the Town’s failure to approve a subdivision that Sherman planned to build on real property that he owned. Laroe Estates, Inc. (Laroe), the potential intervenor was one of two entities that held mortgages on Sherman’s property. The other entity was a bank, and it had the senior mortgage. After Sherman defaulted on his repayments, the bank foreclosed on the property and took possession following a foreclosure sale.

Laroe subsequently moved to intervene in Sherman’s suit against the Town pursuant to Federal Rule of Civil Procedure 24. Laroe argued that it was a “contract vendee” (essentially, a mortgagee) of Sherman’s real property and therefore had a sufficient equitable interest in the property to assert a taking claim against the Town. The district court disagreed. It denied Laroe’s motion to intervene.

The Second Circuit vacated and remanded. The panel identified the relevant question on appeal as whether “a party seeking to intervene as of right must independently have standing.” The Second Circuit noted that a circuit split exists on this issue and joined the majority of circuits in holding that standing is not a prerequisite for intervention under Rule 24.

The issue in this case is whether a party seeking to intervene as a matter of right needs independent Article III standing to do so.

IMLA submitted an amicus brief at the certiorari stage and will join a brief filed by the SLLC at the merits stage.


Filed October 24, 2016 (Supreme Court- Petition Stage)
Direct Marketing Association v. Brohl
No. 16-267
Pro Bono Author: Eric Cintron & Ron Parsons

The question in this case is whether Colorado’s law requiring out-of-state retailers to report total sales to purchasers and the Department of Revenue discriminates against interstate commerce.

Pertinent to this case is the 1992 Supreme Court case, Quill v. North Dakota, holding that a business must be physically present in the state in order for the state to collect a use tax. With the boom of internet retailers, this line of cases has been called into question by the Supreme Court, though not explicitly overruled. 

IMLA joined an amicus brief filed by the SLLC taking the unusual stance that the Court should not accept this case.  The brief argued that certiorari should be denied because the Court has had no recent interest in accepting cases that expand Quill and that if the Court wants to take a case directly presenting the question of whether Quill should be overturned that case will present itself shortly, but that this case does not squarely present the issue of overturning Quill.  The Court denied certiorari.  


Filed October 18, 2016 (Supreme Court- Petition Stage)
Hunter v. Cole
No. 16-351
Pro Bono Author: Robert Fugate

Held: The Supreme Court granted the petition and vacated the judgment in light of Mullenix v. Luna.

This case involves a situation where officers encountered a disturbed and suicidal teen in the street with a gun to his head. The teen turned and the officer felt threatened and fired. The teen’s gun went off and did some serious damage to the teen.

The officers sought qualified immunity arguing that they believed the turn was a likely threat to their lives when they fired, but qualified immunity was denied. Several cases in the circuit concluded previously that even where a person was unarmed and acted in what the officers perceived to be a threatening manner that immunity kicked in. Here where the person was armed the court denied immunity. The parents and the teen argued that the officers’ story was concocted after the fact and that the fact that the teen’s gun discharged close to his head indicated that the teen had never used the gun to threaten the officers. The circuit court took this as a factual dispute to be resolved by the jury.

The Supreme Court vacated the circuit court’s judgment, consistent with the arguments made in IMLA’s amicus brief.


Filed July, 8 2016 (Supreme Court- Petition Stage)
District of Columbia v. Wesby
No. 15-1485
Pro Bono Author: Kymberly Evanson

Certiorari was granted on January 19, 2017

In this case, the District of Columbia Metropolitan Police Department received a late night complaint about a loud party and possible illegal activities inside a house that reportedly had been vacant for several months. Officers soon arrived at the home and heard music coming from inside. When the officers knocked and entered, the people inside scattered into different rooms and hid. Police found twenty-one people throughout the house. The officers observed activity like that “conducted in strip clubs for profit.” Consistent with being a vacant property, the house was in “disarray” and essentially unfurnished.

Police gathered information and interviewed all persons present. No one present owned the house or knew its owner. Some told police that they were there for a birthday party, while others claimed it was a bachelor party. No one could identify the guest of honor. Several said that they had been invited by other people, and some said that a woman known as “Peaches” had given them permission to be in the home. “Peaches,” though, was not present.

Officers called “Peaches” on the phone several times but she was evasive and repeatedly hung up. When an officer asked her to come to the home, she refused, explaining that she would be arrested if she did so. “Peaches” told police she had told the partiers that they could use the home. She also initially claimed to police that the owner had given her permission to use the home and that she was “possibly renting” it from him. Soon, though, “Peaches” admitted to police that, contrary to her initial claim, she lacked the owner’s permission to use the home. Police then spoke with the homeowner, who confirmed that the house was vacant and that no one, including “Peaches,” had permission to be there.

Police arrested all the partygoers inside for criminal trespass (and disorderly conduct – though the petition will focus on criminal trespass), although prosecutors ultimately did not pursue charges.

The partiers brought a Section 1983 claim, alleging the officers lacked probable cause to arrest them for criminal trespass. The district court granted the partiers’ motion for summary judgment, finding that their arrests were without probable cause and that the two defendant officers were not entitled to qualified immunity. After a damages-only trial, the district court entered a judgment against the officers (and jointly against the District of Columbia) totaling nearly $1 million.

The District of Columbia Circuit affirmed in a 2-1 decision. It reasoned that the officers did not have “conflicting information” that would overcome the partiers’ claim that they had been invited to the house by “Peaches” and therefore no reasonable officer could have believed that the partiers knew or should have known that their entry was unauthorized. (The DC statute for trespass required a culpable mens rea on the part of the trespassers). Thus, according to the Circuit Court, a reasonable officer could not have believed that there was probable cause to arrest the plaintiffs.

The DC Circuit next concluded that the law was clearly established, for qualified immunity purposes, because the legal elements of criminal trespass were clearly established, even though no case had invalidated an arrest for trespassing under similar circumstances.

The issues before the Court are: (1) Whether police officers who found late-night partiers inside a vacant home belonging to someone else had probable cause to arrest the partiers for trespassing under the Fourth Amendment, and in particular whether, when the owner of a vacant home informs police that he has not authorized entry, an officer assessing probable cause to arrest those inside for trespassing may discredit the suspects' questionable claims of an innocent mental state; and (2) whether, even if there was no probable cause to arrest the apparent trespassers, the officers were entitled to qualified immunity because the law was not clearly established in this regard.

IMLA submitted an amicus brief at the certiorari stage, framing the issues more broadly. Specifically: (1) whether a police officer assessing probable cause is entitled to credit one set of conflicting statements over another; and (2) even if the officer cannot, whether the law was clearly established on this point. IMLA will join a brief submitted by the SLLC at the merits stage.


Filed February 8, 2016 (Supreme Court – Petition Stage)
City of Houston v. Zamora
No. 15-868
Pro Bono Author: Thomas Hunger, Jason Neal and Andrew Davis

Status: Certiorari was denied on May 16, 2016

Zamora is a police officer with the Houston Police Department (HPD). His father brought a race discrimination claim against HPD and later, Zamora brought a separate charge claiming that HPD retaliated against him for his father’s lawsuit by removing him from a prestigious unit he was on. After three of his supervisors were deposed as a part of the lawsuit, Zamora brought a complaint with the HPD’s Internal Affairs Division (IAD), claiming that those three supervisors had lied under oath and colluded to remove him from his position.

This complaint set off a formal review process by IAD, resulting in a 170 page investigative report written by a Sergeant who collected statements from 22 witnesses (including Zamora, his father and the three supervisors). A Lieutenant reviewed the report and concluded that the allegations against the supervisors were unfounded and moreover, found that Zamora had been untruthful in his statements in the IAD investigation and therefore recommended that Zamora be suspended. The city’s Administrative Discipline Committee (ADC) then reviewed the Lieutenant’s recommendation. The ADC was established by the Mayor to review police investigations of officer misconduct and consists of non-law enforcement civilians. The ADC also found Zamora had been untruthful and recommended suspension for 10 days. That recommendation was then reviewed by additional layers within HPD, and ultimately HPD’s Chief of Police upheld the finding and suspension.

Zamora amended his federal district court retaliation claim to include a retaliation claim based on the IAD suspension for his untruthful statements. Around this same time, an independent arbitrator overturned his suspension (he had sought review of the decision via arbitration). Nonetheless, his suit went forward and a jury ultimately found in Zamora’s favor.

The Fifth Circuit held that the “cat’s paw” theory of liability identified in Staub v. v. Proctor Hospital, 562 U.S. 411 (2011) was a viable theory of liability in the context of a Title VII retaliation claim. The court so held, despite the fact that Staub involved a claim requiring a plaintiff to only prove the discriminatory animus was a “motivating factor” in the adverse employment action, whereas the Court’s decision in University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013) requires a “but for” showing for causation in retaliation claims. On this point, the Fifth Circuit found that “but for” the testimony of the three supervisors which was allegedly motivated by retaliatory animus, Zamora would not have been suspended.

The Fifth Circuit rejected the city’s argument that the “many layers of review between the CRU supervisors’ statements and the ultimate decisionmaker” broke the chain of causation and made the cat’s paw theory of liability inapplicable here.

The issues before the Court in the petition for certiorari are:

1. Whether the “cat’s paw” theory of liability recognized in Staub v. Proctor Hospital, 562 U.S. 411 (2011), for statutes that require animus to be merely a “motivating factor” in an adverse employment decision is equally applicable to statutes that demand prohibited animus to be the “but-for” cause of the adverse action.

2. Whether the “cat’s paw” theory of liability extends to employment actions taken after an extensive internal review process that considers testimony from nearly two dozen witnesses and provides multiple layers of independent review, including an independent review board with citizen involvement, just because a federal jury ultimately reaches a different conclusion about witness credibility.

In addition to arguing that the Fifth Circuit’s decision was wrong in its application of the law, IMLA’s brief argued that the decision exposes public employers to expansive liability and undermines careful internal review procedures that are designed to protect employees and the public alike.


Filed February 3, 2016 (Supreme Court Petition Stage)
United States Air Funds, Inc. v. Bible
No. 15-861
Pro Bono Author: Ashley Johnson

Status: Certiorari was denied on May 16, 2016

The question this case presents is whether the Court should overrule Auer v. Robbins, 519 U.S. 452 (1997), which requires courts to defer to agency interpretations of their own regulations, even where such interpretations first appear in things like an amicus brief (as was the case here).

When Bryana Bible defaulted on her student loan, USA Funds stepped in as the guarantor of the loan. The loan is governed by a Promissory Note subject to the Higher Education Act and regulations promulgated by the Department of Education. When Bible signed the Note, she agreed that “[i]f she default[s] on any loans, [she] will pay reasonable collection fees and costs, plus court costs and attorney fees.” After Bible’s lender found her in default, USA Funds paid the default claim and the lender transferred the loan to USA Funds. USA Funds sent Bible a letter providing options for rectifying her default, including an alternative payment plan or a rehabilitation agreement. Bible and her lawyers chose the latter and agreed to pay $50 a month for at least nine months so that the default would not remain on her record. And consistent with the terms of the agreement, USA Funds assessed reasonable collection costs.

Bible sued, on behalf of a putative nation-wide class of defaulted borrowers, alleging that charging her collection costs not only breached the terms of the regulations incorporated into the Note, but also violated RICO—and entitled her (and the putative class) to treble damages and attorneys’ fees.

The district court dismissed the complaint for failure to state a claim. On appeal, the Seventh Circuit panel invited the Department of Education to submit an amicus brief expressing its views. The Department did so, announcing for the first time that it interpreted its regulations as categorically prohibiting the collection costs. In support, the Department invoked another, separate, regulation stating that collection costs may not be assessed when a borrower undertakes a “repayment agreement” that the guaranty agency determines to be “satisfactory,” and the Department asserted that a “rehabilitation agreement” is, and must always be, a “repayment agreement on terms satisfactory to the [guaranty] agency”—even though the Department’s own website (as well as the statute) states that collection costs “may” be applied to rehabilitation agreements, and even though that website states that “repayment” is an option separate from “rehabilitation” for those in default on their student loans.

The Seventh Circuit was divided and Judge Flaum provided the controlling concurrence, holding that the court is required by Auer to accept the agency's view that collection costs may not be assessed against borrowers who sign rehabilitation agreements.

The Seventh Circuit denied the motion for rehearing en banc. In his concurrence of the denial, Judge Easterbrook noted:

[W]hether Auer supports the Secretary’s current position . . . is a substantial and potentially important question, but an antecedent issue is whether Auer is sound. In concurring opinions to Perez v. Mortgage Bankers Association, three Justices (including Auer’s author) expressed deep reservations about deferring to the position an agency adopts through means other than rulemaking.

I do not think that it would be a prudent use of this court’s re-sources to . . . consider how Auer applies . . . when Auer may not be long for this world. The positions taken by the three members of the panel show that this is one of those situations in which the precise nature of deference (if any) to an agency’s views may well control the outcome.

IMLA’s amicus brief argued that from a practical standpoint, Auer deference provides a perverse incentive for administrative agencies to draft vague regulations or effectively rewrite their regulations without going through notice and comment rulemaking, under the guise of merely “interpreting” those regulations, knowing that reviewing courts must in nearly all instances give those “interpretations” binding effect—even when they are announced for the first time in an amicus brief, as in this case.  Not only are local governments burdened through litigation by agencies that interpret their regulations in this manner, but local governments also often regulate in the same space as those agencies so they have an interest in those agencies providing clarity in their regulations so that local regulations do not inadvertently conflict with federal regulations and risk preemption.


Filed January 22, 2016 (Supreme Court Petition Stage)
Blanchard & Walworth County v. Brown
No. 15-824
Pro Bono Author: Sarah Shalf

Status: Certiorari was denied on April 25, 2016.

The issue in this case is whether, on an interlocutory appeal from the denial of qualified immunity, a circuit court must accept a district court’s conclusion that there are material disputes of fact or that the factual disputes are genuine.

The facts of this case involve a suicidal young man, John Brown. His mother called 911 after finding that he had cut himself in his bedroom with a knife. Shortly thereafter, two officers arrived on the scene; officer Blanchard and officer Such. After his mother conveyed the relevant information to the officers, including that the knife was in her son’s possession, she went into the living room of the mobile home where she could no longer see what transpired, however, she could hear the officers from there. Officer Such went outside to look through the bedroom window and saw Mr. Brown drinking a beer and smoking a cigarette. Officer Such radioed that information and returned to officer Blanchard. Officer Blanchard kicked in the locked bedroom door. Both officers observed Mr. Brown holding a knife with blood dripping down his arm. He walked over toward the officers and closed the door on them. Officer Blanchard then kicked in the door again and, according to the officers, he ordered Mr. Brown to drop the knife and told him they would have to shoot him if he did not drop it. Instead of dropping the knife, Mr. Brown raised the knife over his head and advanced on the officers. When he was within 5-6 feet of the officers, officer Blanchard shot and killed him.

Mr. Brown’s mother disputes that the officers told her son to drop the knife and she claims she heard her son say “fine, come in and shoot me between the eyes and kill me.” It is undisputed, however, that she could not see the events that transpired and that she therefore did not know whether her son had threatened the officers with the knife by raising it and advancing on them.

The district court held that the mother’s testimony that the officers did not tell her son to drop the knife discredited their testimony regarding whether Mr. Brown had threatened them with the knife. The court therefore found a dispute of material fact as to whether the officers had been threatened (despite the uncontradicted testimony on this point as the officers were the only ones able to see the events) and concluded that qualified immunity was therefore inappropriate.

The Seventh Circuit concluded that its review of the denial of qualified immunity on an interlocutory appeal is limited and that it cannot “determine whether the district court erred in finding that a genuine issue of material fact exists.” The court therefore determined that it must accept the district court’s conclusion that there was a genuine dispute of material fact as to whether Mr. Brown had raised the knife and advanced on the officers at the time he was shot. After so concluding, the Seventh Circuit held that the denial of qualified immunity was appropriate because it was clearly established that the use of deadly force against a nonresisting or passively resisting suspect was unjustified.

In arguing that certiorari should be granted, IMLA argued that the Supreme Court’s jurisprudence on appellate review of qualified immunity at the summary judgment stage is unclear and therefore has created a circuit split necessitating the Court’s review.


Filed December 16, 2015 (Supreme Court Petition Stage)
Wasatch County v. Ute Indian Tribe
No. 15-640
Pro Bono Author: Erik Jaffe

Status: Certiorari was denied on March 21, 2016.

The underlying facts of this case are largely irrelevant and involve a long tortured litigation history between Utah, some of the counties in Utah, and a Native American Tribe; the Ute Indian Tribe (the “Tribe”). The dispute centers on what the boundaries of the Tribe’s reservation are.

Relevant for IMLA’s purposes was that the Tenth Circuit enjoined Wasatch County from prosecuting a member of the Tribe based on an exception to the Anti-Injunction Act that permits enjoining a state court proceeding to enforce a prior federal court judgment. Notably, however, the county was not a party to the prior case (which did not even produce an enforceable judgment as the parties settled). The Tenth Circuit nonetheless held that every county was in privity with the State who was a party to the prior suit even though there was no evidence that the State had litigated the prior litigation with Wasatch county’s interests in mind. To the contrary, the State settled with the Tribe and the county received nothing for that settlement.

On this privity point, the Tenth Circuit noted “[i]t’s not just parties who are bound by prior decisions: those in privity with them often are too, and counties are usually thought to be in privity with their states for preclusion purposes when the state has lost an earlier suit.” (emphasis added).

The question presented in the petition for certiorari is: “Did the court of appeals err in defying this Court’s decision in Hagen v. Utah and enjoining a proper state court prosecution of a tribal member on lands that this Court has held have been diminished by Congress?” Because IMLA’s brief focused solely on the privity issue, and not on boundary dispute, IMLA framed the issue as whether a local government is in privity with a state for preclusion purposes when there is no evidence that this particular local government’s interests were litigated or protected by the state.


Filed December 14, 2015 (Supreme Court Petition Stage)
Michigan Gaming Control Board v. Moody
No. 15-623
Pro Bono Author: Marcelyn Stepanski

The Michigan Gaming Control Board (MGCB) regulates harness racing, a form of horse racing, in Michigan. In the course of investigating allegations of illegal race-fixing, Michigan horse-racing stewards asked the plaintiffs, who were all harness drivers, questions that they construed as possibly self-incriminating. Invoking the Fifth Amendment to the Constitution, the harness drivers refused to answer. Because of this refusal, the MGCB suspended the harness drivers’ licenses to race and excluded them from horse-racing grounds.

The harness drivers sued the MGCB and its employees in federal district court under §1983 seeking damages and injunctive relief. Relevant to this case is the Supreme Court’s decision Garrity v. New Jersey, which held that confessions given by public employees (police officers) threatened with job loss were “coerced” and, therefore, the Fifth Amendment barred their use in a criminal proceeding. 385 U.S. 493 (1967).

The Sixth Circuit held that the Fifth Amendment of the Constitution entitled the harness drivers to refuse to answer potentially self-incriminating questions unless the state immunized them from prosecution and by punishing them – i.e., revoking their license and excluding them from the grounds– the MGCB violated their constitutional rights. In so holding, the Sixth Circuit relied on Garrity despite the fact that there were no criminal proceedings. The Sixth Circuit therefore held that the plaintiffs had a viable §1983 claim and remanded on the question of whether the right was clearly established at the time of the violation.

The petition for certiorari raises the following two questions:

1. Does the 5th Amendment hamstring State gambling regulators by requiring them to obtain a formal grant of immunity from all potential prosecutorial agencies before taking administrative action against a licensee who invokes his 5th Amendment privilege not to answer regulatory-related questions?

2. Can a regulatory licensee prove a civil-rights claim premised on a violation of 5th Amendment rights when the licensee has not given incriminating statements or been subjected to criminal proceedings?

IMLA’s brief focused on the case’s significance to local governments in terms of employment and for code enforcement purposes.


Filed September 10, 2015 (Merits-stage brief; SCOTUS)
Franchise Tax Board of California v. Hyatt
No. 14-1175
Petition-stage brief filed April 24, 2015
Petition Stage Pro Bono Author: Quin Sorenson
Merits Stage Pro Bono Author: Quin Sorenson
Status: Certiorari was granted on June 30, 2015

This case involves a former California resident who earned hundreds of millions of dollars in licensing fees during the time that he lived in California before moving to Nevada. In 1993, the Franchise Tax Board of California (FTB) audited his California tax returns and concluded that he owed the state millions in unpaid income taxes, interest, and penalties. The now Nevada resident responded by filing suit against FTB in Nevada state court, alleging that FTB had committed fraud, intentional infliction of emotional distress and other torts in the course of the audit.

The Nevada Supreme Court held that the discretionary-function immunity for a governmental entity and its employees was not applicable in this case because the Nevada Court recognizes an exception to that immunity for bad-faith conduct. The Nevada Supreme Court also held that FTB was not entitled, under principles of comity, to the Nevada statutory cap on damages that is available to Nevada governmental entities. The court concluded that allowing FTB to utilize the damages cap would violate Nevada’s public policy because the state’s interest in providing relief to its citizens outweighs the comity principles.

The petition raised three issues for review by the Supreme Court: (1) Whether the federal discretionary-function immunity rule, 28 U.S.C. §2680(a), is categorically inapplicable to intentional torts and bad-faith conduct; (2) Whether Nevada may refuse to extend to sister States haled into Nevada courts the same immunities Nevada enjoys in those courts; and (3) Whether Nevada v. Hall, 440 U.S. 410 (1979), which permits a sovereign State to be haled into the courts of another State without its consent should be overruled.

IMLA submitted an amicus brief at the petition stage focusing on the first and second issue and certiorari was granted on June 30, 2015.



Filed August 13, 2015 (Supreme Court – Petition Stage)
Schott v. Wenk
No. 15-54
Pro Bono Author: Francisco Negron

Status: The petition for certiorari was denied on January 11, 2016.

Nancy Schott, the public school director of pupil services, made an allegation of child abuse against Peter Wenk, the father of a child at Ms. Schott’s school. And while much of the information in her report is contested by her colleagues, the Sixth Circuit accepted that her report was not materially false and that it could support a “reasonable basis” to suspect child abuse. The subject of the report claimed that Schott filed the report in retaliation for him requesting a “special ed prom” for his daughter and for his request that his daughter’s education plan be changed to include more social opportunities. School officials are mandatory child abuse reporters in Ohio.

The Sixth Circuit denied Schott qualified immunity concluding that a reasonable person in her position would have known that she was violating the Wenks’ First Amendment rights. The court cited circuit precedent holding that school officials can be liable for making false child abuse reports in retaliation of parents exercising their First Amendment rights. Schott pointed out that Ohio’s child abuse reporting statute immunizes reports made in bad faith. The Sixth Circuit responded: “The Supreme Court has long held ‘that a state law that immunizes government conduct otherwise subject to suit under § 1983 is preempted, even where the federal civil rights litigation takes place in state court, because the application of the state immunity law would thwart the congressional remedy, . . . which of course already provides certain immunities for state officials.’”

The petition for certiorari raises three issues for consideration, of which, the following two were addressed by the brief submitted by IMLA: (1) Whether a mandatory child abuse reporter is entitled to qualified immunity when there is evidence in the record to support a reasonable basis to suspect abuse and the report is not materially false; (2) Whether a constitutional retaliation claim under the First Amendment against a mandatory reporter of child abuse is cognizable under Section 1983 even where reasonable grounds exist to suspect abuse and where the report is not materially false.


 

Filed April 14, 2015 (Petition-stage brief; SCOTUS)
Securities and Exchange Commission v. City of Miami & Bordeaux
No. 14-10363
Petition-stage Pro Bono Author: Sarah Shalf
Amicus Brief to the Eleventh Circuit filed November 13, 2014
Eleventh Circuit Pro Bono Author: Jay Solowsky 

Status: Certiorari was denied on June 29, 2015

The SEC instituted a civil enforcement action against both the city of Miami and various financial officials, including the Budget Director for the city, alleging that they committed securities fraud through both misrepresentations and omissions in their financial documents. The city and the Budget Director argued that the Budget Director was entitled to qualified immunity as a matter of law because he was acting within the scope of his duties when the alleged misconduct occurred.

The Eleventh Circuit upheld the district court’s denial of qualified immunity for the Budget Director, reasoning that the doctrine of qualified immunity did not bar the SEC’s action seeking civil penalties against the Budget Director (as opposed to where a plaintiff seeks damages).

The Budget Director submitted a motion for rehearing en banc to the full panel for the Eleventh Circuit and IMLA submitted an amicus brief supporting that appeal. The full panel denied the motion for rehearing and the Budget Director petitioned the Supreme Court for certiorari. IMLA will also submit an amicus brief in support of the petition for certiorari.

The issue is being framed broadly in the petition for certiorari. The question presented is whether municipal employees should be entitled to assert the defense of qualified immunity in non-Section 1983 matters (a question that the circuit courts are currently split on).


Filed March 4, 2015 (Petition-stage brief; SCOTUS)
Animal Care Trust v. United Pet, Inc.
No. 14-954
Pro Bono Author: Linda Coberly & Geoffrey Eaton

Status: Certiorari was denied on June 1, 2015

The city of Chattanooga contracts out its animal-welfare services to a private non-profit corporation (“McKamey”). McKamey was under contract with the city to provide animal services and to enforce the city’s ordinances regarding animal welfare within the city. Their officers are commissioned by the city as special police officers to provide those services and they are authorized by the city to investigate complaints of neglect and animal cruelty and to issue citations on behalf of the city. Two of the three individual defendant employees of McKamey were commissioned as special police officers of the city and one was not. McKamey received complaints about abuse, neglect and unsanitary conditions regarding a store selling pets, United Pet Supply, Inc. (the “pet store”), including reports of a dead puppy. When the McKamey employees went to the store to investigate, they discovered that the pets were being maintained in inhumane conditions and they proceeded to remove the animals and certain business records from the store.

The store brought a § 1983 case against the individual employees of McKamey as well as McKamey and the City of Chattanooga claiming that the removal of the pets and revocation of the pet store’s permit without a hearing violated the store’s due process rights and constituted a warrantless seizure of its animals and business records in violation of the Fourth Amendment. McKamey and the three individual employees claimed they were entitled to qualified immunity on all claims.

The Sixth Circuit held that the two individual employees who were commissioned as special police officers by the city could assert the defense of qualified immunity, however, the individual who was not commissioned as a special police officer was not entitled to assert the defense of qualified immunity. The Sixth Circuit also held that the company was not entitled to assert the defense of qualified immunity, just as the city cannot assert qualified immunity.

The issue before the Court is whether private companies and their employees should be entitled to assert the defense of qualified immunity where they are contracted by a municipality to perform functions traditionally performed by government.


Filed February 20, 2015 (Petition-stage brief; SCOTUS)

Baltimore City Police Dept., et. al v. Owens
No. 14-887
Pro Bono Author: Glen Allen

Status: Certiorari was denied on April 27, 2015

The Respondent was convicted of rape and murder in 1988 and was later released based on DNA evidence. He brought a §1983 complaint, alleging, among other things, that the Baltimore City Police Department and the individual police officers violated his constitutional rights by intentionally withholding exculpatory evidence during the 1988 trial.

The defendant’s conviction was vacated in 2007 based on the DNA evidence. The state filed a nolle prosequi in October of 2008. In Maryland a nolle prosequi has no final effect on criminal proceedings unless jeopardy has attached or the statute of limitations has run on the criminal charge. In Maryland murder is not subject to limitations.

The Respondent’s claims against the police and the prosecutor were that an accomplice who testified at the trial against him gave several conflicting statements to the police (the police agree) but that the prosecution did not turn this evidence over to the Respondent at his criminal trial so that the accomplice could be cross examined.

The city argued that the statute of limitations began to run when the cause of action accrued, i.e., when the conviction was vacated in 2007, and the complaint should therefore be dismissed. However, the Fourth Circuit concluded that limitations for cases involving Brady violations do not run until the case is finally concluded and the Fourth Circuit held that the final conclusion was entry of the nolle prosequi in 2008.
The second issue in the case is whether the police officers in 1988 were aware that they were subject to personal liability for failing to disclose Brady material to the prosecutor. The Fourth Circuit concluded that they should have known based on Fourth Circuit precedent that they could be personally liable and qualified immunity was therefore inappropriate. However, a review of the case law from that circuit suggests that the issue was not so clear and that as late as 1997 the Fourth Circuit seemed to have a murky view of the issue. Perhaps more to the point, the Fourth Circuit used a case decided about a year after the events in this case to conclude that the issue was settled in the circuit.

There are two issues before the Court in this petition. First, when does the statute of limitations begin to run in a case that is reversed for a Brady violation? The city contends, and IMLA agrees, that the statute of limitations should begin to run in a case involving a Brady violation when the conviction that is based on a Brady violation is vacated, as a retrial will not implicate the Brady violation and the civil action can proceed without implicating any further criminal trials.

The second issue in the case is whether the police officers in 1988 were aware that they were subject to personal liability for failing to disclose Brady material to the prosecutor. In other words, the question before the Court is whether police officers have an independent duty under Brady to provide exculpatory evidence to the defense.


Filed January 16, 2015 (Merits-stage brief; SCOTUS)
City and County of San Francisco v. Sheehan
No. 11-16401
Petition-stage amicus brief filed on June 26, 2014
Pro Bono Author (merits and petition): Sarah Shalf
Held: The first issue, i.e., whether the Americans with Disabilities Act applies to police officers effectuating an arrest, was dismissed as improvidently granted. Regarding the second issue, Court held that police officers who were faced with an armed, violent, mentally ill suspect who had already made death threats to three people did not violate clearly established law when they entered the suspect’s residence instead of trying to accommodate her disability and that they were therefore entitled to qualified immunity

In this case, two police officers were called by a social worker to take Sheehan (the Respondent) into custody for an involuntary mental evaluation after Sheehan had threatened a social worker with a knife. When the officers arrived, they opened the door to Sheehan’s residence and she threatened to kill them and brandished a knife. They closed the door to her residence and called for backup. However, they then made the determination to reenter her residence before backup arrived to effectuate the arrest, in order to prevent Sheehan from harming herself or others. When they reentered, Sheehan rushed them with a knife. The officers tried to use pepper spray to stop her and when that didn’t work, they shot her several times. She survived and sued under 42 U.S.C. § 1983 and the ADA.

The Ninth Circuit agreed with the district court that the first entry was lawful (under the warrantless search exemption to render emergency assistance or respond to exigent circumstances) as was the officers’ ultimate use of deadly force under the circumstances. However, the Ninth Circuit held that the officer’s second entry into Sheehan’s residence was unlawful under both the Fourth Amendment and ADA. The court held that the second entry was unreasonable under the Fourth Amendment, on the basis that it was unreasonable to make an otherwise lawful entry when the officers could have desisted from their efforts to arrest Sheehan in light of her resistance and mental illness, and used different tactics that might have resulted in a different outcome. Regarding Sheehan’s claim under the ADA, the Ninth Circuit held that the “reasonable accommodation” requirement of Title II of the ADA applies to officers’ conduct in the course of an arrest – including an arrest of a violent individual like Sheehan. The court further held that the issue of the reasonableness of the accommodations proposed after this incident by Sheehan’s litigation expert (i.e., that the officers should have allowed Sheehan to remain in her “comfort zone” until they were able to calm her down), was one for the jury.

The Supreme Court granted certiorari on two issues: (1) whether the ADA requires police officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of an arrest; and (2) whether it was clearly established for the purposes of the Fourth Amendment that even where an exception to the warrant requirement applied, an entry into a residence could be unreasonable by reason of the anticipated resistance of an armed and violent suspect within the residence.

IMLA’s brief argued, among other things, that individual police officers should not be required to perform an analysis regarding what accommodations are necessary under the ADA, but rather, police officers should be afforded the broad discretion in these circumstances.

The Court dismissed the first issue regarding the ADA as improvidently granted.

Regarding the Fourth Amendment issue, the Court noted that the “real question” was “whether, despite these dangerous circumstances, the officers violated the Fourth Amendment when they decided to reopen Sheehan’s door rather than attempting to accommodate her disability.” Despite having reframed the question presented on the Fourth Amendment issue, the Court declined to rule on this constitutional question – i.e., whether the officers violated the Fourth Amendment by entering the suspect’s home the second time rather than attempting to accommodate her disability. The Court instead, rested its holding on the fact that the law was not clearly established at the time of the events, thereby entitling the officers to qualified immunity. In so holding, the Court reversed the decision of the Ninth Circuit, admonishing that court that it has “repeatedly told courts – and the Ninth Circuit in particular – not to define clearly established at a high level of generality…Qualified immunity is no immunity at all if ‘clearly established’ law can simply be defined as the right to be free from unreasonable searches and seizures.” The Court explained that under the circumstances, a reasonable officer could have concluded that the second entry into Sheehan’s home was justified both under the continuous search rationale and the exigent circumstances rationale.


Filed August 29, 2014 (Petition-stage brief; SCOTUS)
Wyatt v. Gonzalez
No. 14-108
Pro Bono Author: Jill Williams
Status: Certiorari was denied on November 17, 2014

This case involves a question of whether a police officer was entitled to qualified immunity after he used deadly force when he became a prisoner in a vehicle controlled by an individual who had already committed several dangerous felonies. The Ninth Circuit held that because the parties disputed how fast the van was traveling at the time the trapped officer shot and killed the driver, summary judgment was inappropriate as a reasonable jury could conclude that the use of deadly force violated the Fourth Amendment. In a scathing dissent, Judge Trott explains that the majority’s focus on the speed of the van is entirely misplaced for the purposes of the Fourth Amendment and that under Garner and other well-established Supreme Court precedent, the officers’ actions were objectively reasonable under the circumstances. Specifically, Judge Trott notes that the “factual dispute” relied upon by the majority - i.e., the speed of the van at the time the officer shot the driver – is not a “material” fact and therefore should not have been considered in the Fourth Amendment reasonableness analysis.

The issue before the Supreme Court is whether, contrary to precedent in Scott v. Harris, 550 U.S. 372 (2007) and Rule 56 of the Federal Rules of Civil Procedure, the Ninth Circuit erred when it concluded that immaterial discrepancies in a police officer’s recollection of a stressful event amounted to a “genuine issue for trial” even where the plaintiff offered no contradictory evidence. IMLA’s brief argues that the Ninth Circuit’s holding renders Rule 56 of the Federal Rules of Civil Procedure essentially impotent in excessive force cases brought under 42 U.S.C. § 1983.


Filed August 18, 2014 (Petition-stage brief; SCOTUS)
Schultz v. Wescom
No. 14-59
Pro Bono Author: Adam Rosenberg
Status: The Supreme Court denied certiorari on December 15, 2014

This case involves a question of whether a municipality/police officer may immediately appeal a decision by a district court to defer the issue of qualified immunity until the completion of discovery. The Circuit Courts are split on this question with the Seventh and Ninth Circuits holding that such a decision is not appealable on an interlocutory basis, while the majority of the other Circuit Courts hold that such a decision is immediately appealable. In this case, the Ninth Circuit held on appeal that there is no appellate jurisdiction of a rule 56(d) deferral for a limited time to conduct discovery as it is not a denial of qualified immunity.

If the Ninth Circuit is correct, municipalities and police officers will be required to expend far greater resources before being able to move for summary judgment. IMLA’s brief argues that the purpose of qualified immunity is to shield officers from the costs of having to go through the litigation process and it is certainly in municipalities/police officers’ best interest to have questions of qualified immunity resolved at the earliest possible time-frame.


Filed August 18, 2014 (Petition-stage brief; SCOTUS)
City of Newport Beach v. Pacific Shores Properties, LLC
No. 14-56
Pro Bono Author: Tiffany Israel
Status: The Supreme Court denied certiorari on November 3, 2014

The City of Newport Beach enacted an ordinance restricting group living arrangements, which on its face does not single out any particular group living arrangements. Prior to the ordinance’s enactment, “group homes” – i.e., homes in which recovering alcoholics and drug users live communally – were generally permitted in the City’s residential zones. According to the Ninth Circuit decision, the practical effect of the ordinance was to prohibit new group homes from opening in most residential zones and to require existing group homes to undergo a permit process to continue their operations. According to the Ninth Circuit and the plaintiffs in the case, the purpose behind the ordinance was to limit and eventually eliminate group homes from the City’s residential zones. The plaintiffs brought suit under the Americans with Disabilities Act (ADA) and the Fair Housing Act (FHA), attacking the validity of the ordinance as persons recovering from addiction are protected from housing discrimination.

The Ninth Circuit held that the plaintiffs had created a triable issue of fact as to whether the City had violated the ADA and FHA when it enacted the zoning ordinance restricting the areas of the City in which group homes for recovering addicts, as well as other group residential living facilities, can be located. According to the Ninth Circuit, a jury could find—based on the history that preceded the ordinance’s enactment and comments made during city council meetings—that the facially neutral ordinance was motivated by an improper desire among city officials and local residents to discriminate against recovering addicts. The panel further held that the plaintiffs were not required to identify similarly situated individuals who were treated better than themselves in order to survive summary judgment, despite the fact that they were proceeding on a disparate treatment theory of discrimination.

The issue before the Supreme Court is whether a disparate-treatment claim under the FHA and ADA that challenges a facially nondiscriminatory law on the ground that the law nevertheless intentionally discriminates on the basis of disability can prevail absent proof of discriminatory effects. IMLA’s amicus brief argues, among other things, that the Ninth Circuit’s decision will have a chilling effect on public comments of elected municipal officials, municipal staff, legal counsel, and members of the public for fear of creating the evidence necessary to support a challenge to proposed municipal action even where no discriminatory effect has been demonstrated.


Filed August 5, 2014 (Merits-stage brief; SCOTUS)
Comptroller v. Wynne
No. 13-485
Merits Author: Paul Clement & Zack Tripp
Petition-stage brief filed on November 18, 2013
Petition stage author: Erich Eiselt (IMLA)

Maryland taxes the entire income of its residents by imposing a state income tax with two components: a State tax and a County tax. The County tax is based on where the individual is domiciled and maintains a principal residence. State law provides for a tax credit for taxes paid to other states, but this credit does not apply to offset a resident’s County tax obligation. The Respondents are a married couple with five children residing in Howard County, Maryland. In 2006, the tax year at issue, Mr. Wynne held a 2.4% ownership interest in a Maryland Subchapter-S corporation based in Howard County. The Wynne’s object to Maryland’s taxing scheme, claiming that the County tax creates a situation of unconstitutional double taxation in violation of the dormant commerce clause. The Maryland Court of Appeals held in favor of the resident tax payers.

The Supreme Court accepted certiorari and will resolve the conflict created by the Maryland Court of Appeals’ decision between a most basic principle of state sovereignty – the right of a state to tax a resident within its boundaries, which has been recognized throughout the history of the Court–and the unwritten, amorphous and arbitrary concept of “dormant” Commerce Clause jurisprudence.


Filed July 21, 2014 (Petition-stage brief; SCOTUS)
Kalamazoo County Road Commission v. Deleon
No. 13-1516
Pro Bono Author: Conor Dugan
Status: The Supreme Court denied certiorari on January 12, 2015

The Respondent, Robert Deleon, worked for the Kalamazoo County Road Commission (“the Commission”). A vacancy arose for a new position within the Commission for which he applied. Deleon was interviewed, but was not ultimately offered the position. The Commission offered the position to another candidate, but that candidate left shortly after he was hired. Subsequently, the Commission transferred Deleon to the position that he had originally applied for. Deleon objected to the transfer (even though he originally requested it) and demanded a raise at the time of the transfer, which he was denied. After the transfer, he took a medical leave and the Commission ultimately terminated his employment after eight months of leave, indicating that he had exhausted all of his available leave.

The Sixth Circuit concluded that a reasonable jury could find that Deleon had suffered an adverse employment action based on the lateral transfer. The court concluded that the mere fact that Deleon had previously applied for the position does not “categorically bar a finding of an adverse employment action.” The court reasoned that the “key focus of the inquiry should not be whether the lateral transfer was requested or not requested, or whether the aggrieved plaintiff must ex tempore voice dissatisfaction, but whether the ‘conditions of transfer’ would have been ‘objectively intolerable to a reasonable person.’”

The question before the Supreme Court was whether an employee has suffered an adverse employment action when an employer transfers the employee to a position that the employee himself requested. IMLA’s brief argued, among other things, that as a result of an existing circuit split, employers do not have a clear, workable standard regarding transfer decisions. Further, the Sixth Circuit’s decision subjects employers to potential liability whether after granting employee requests or denying them, which IMLA noted that it is especially problematic for public-sector employers whose employees are often governed by collective bargaining agreements, which often include provisions regarding transfers.


Filed June 4, 2014 (Merits-stage brief; SCOTUS)
Integrity Staffing Solutions, Inc. v. Busk
No. 13-433
Pro Bono Author: James Ho
Petition-stage amicus brief – Filed on November 7, 2013
Held: The Court unanimously held that the time the employees spent waiting to undergo security screenings was not compensable under the FLSA.

Integrity Staffing Solutions provides temporary warehouse staffing to clients such as Amazon.com. In 2010, two plaintiffs filed a putative collective and class action alleging that pursuant to the FLSA, they, and hundreds of other former and current employees of Integrity, were entitled to compensation for time spent undergoing security screenings at warehouses in which they filled orders for the online retailer.

Integrity filed a motion to dismiss arguing that the time spent clearing security checks at the end of the work day is not compensable under the FLSA, as the security screenings were not “necessary and integral” to the employees’ jobs as warehouse workers. Integrity’s argument in favor of dismissal was consistent with decisions of the Second Circuit and the Eleventh Circuit.

The district court agreed with the holdings of those courts and held that even if the security checks were necessary to the employer’s goal of minimizing employee theft, plaintiffs still did not state a claim upon which relief could be granted because the security screenings were not “necessary and integral” to the employees’ jobs of order fulfillment. Plaintiffs appealed, and with respect to their claim regarding the compensability of time spent proceeding through security screenings, the Ninth Circuit reversed. The issue in this case was whether time spent in the security screenings is compensable under the FLSA. The Supreme Court held that it was not.


Filed April 21, 2014 (Petition-stage brief; SCOTUS)
Koopman v. Myers
No. 13-1143
Pro Bono Author: John Wilkerson
Status: Certiorari was denied

This case implicates important questions for law enforcement regarding whether a claim for malicious prosecution may be brought as a 4th Amendment violation under § 1983.

The Respondent asserts that Detective Koopman obtained an arrest warrant by falsifying an affidavit to create the illusion of probable cause. Pursuant to that warrant, law enforcement searched the Respondent’s property and discovered a jar containing a white substance. Field tests initially incorrectly identified the substance as methamphetamine. The Respondent was then arrested, again, according to the Respondent, as a result of falsified information in another Koopman affidavit, and he spent three days in custody. Additional tests on the substance revealed that it was not a controlled substance and all charges were subsequently dropped against the Respondent on November 15, 2007.

The Respondent brought suit in district court on November 5, 2009 under § 1983, alleging violations of the Fourteenth and Fourth Amendments. The district court granted judgment on the pleadings for all claims, holding that the Fourteenth Amendment claim should be dismissed because an adequate state remedy existed and the Fourth Amendment claim was untimely. The Tenth Circuit reversed the district court’s ruling on the Fourth Amendment claim, reaffirming that in the Tenth Circuit, a claim for malicious prosecution exists under § 1983 and that the statute of limitations began from the date the charges were dropped against the Respondent, not the date that he was arrested.

This case raises the following questions: (1) Whether a §1983 malicious prosecution claim exists under the Fourth Amendment against an investigating police detective; and (2) If such a claim exists, in a situation not involving a conviction should the applicable statute of limitations begin to run when the claimant was detained pursuant to the arrest warrant?


Filed March 24, 2014 (Petition-stage brief; SCOTUS)

City of Chicago v. Jimenez
No. 13-997
Pro Bono Author: Lawrence Rosenthal
Status: Certiorari denied on April 7, 2014

This case involved an appeal from a district court’s finding of a Batson violation and a forfeiture of a peremptory challenge imposed as a sanction. As a result of these rulings, the City was not permitted to exercise one of its three peremptory challenges. Batson requires the district court to make a finding of fact regarding whether the reason the attorney has offered for the use of a peremptory strike is pretextual. In this case, the City tried to strike an African-American juror whose great-nephew had recently been released from prison after serving 14 years for murder. The plaintiff had been released after serving sixteen years for murder. The Seventh Circuit held that on appeal from a ruling that a party has committed a Batson violation (i.e., used a peremptory strike in a discriminatory manner), the court need not review the merits of the district court’s decision unless the appellant can show that the juror was actually biased (a harmless error standard). The Eighth, Ninth, and Eleventh Circuits have similarly held. The court also brushed aside the City’s complaint that it had been deprived a statutorily protected right to 3 peremptory challenges when the court denied its peremptory challenge under Batson and precluded it from exercising the challenge on another juror.

The issue before the Court was whether the denial of a peremptory challenge (as a result of an alleged Batson violation) can only be overturned if the jury was actually biased. According to the 7th Circuit, the erroneous deprivation of a statutory right (right to a preemptory challenge) is necessarily harmless unless there is also a denial of due-process – because of the service of a biased juror. Many members of the Court have indicated in the earlier oral arguments that such a standard could never be met. The case also implicates the underlying fact finding by the district court, which would be effectively unreviewable under this standard. That is a concern to local government lawyers as well as their clients since there is a taint of racial discrimination in the Batson finding.


Filed February 26, 2014 (Petition-stage brief; SCOTUS)
L.A. County Flood Control Dist v. NRDC
No. 13-901
Pro Bono Author: Shawn Hagerty, Roderick Walston
Status: Supreme Court denied certiorari on May 5, 2014

IMLA originally filed an amicus brief in this case the first time it was before the Supreme Court on September 13, 2012 and the Court agreed with IMLA’s argument that the Clean Water Act did not define discharge to include moving water from one part of the same water body to another part of that water body. On remand the Ninth Circuit still found the District liable. From a municipal water quality perspective, the key question is whether a county-wide Municipal Separate Storm Sewer System (MS4) permit may impose liability on the owner of a drainage system that receives pollutants from multiple sources without any evidence that the owner discharged pollutants to the system. The 9th Circuit held that the Flood Control District and the County could be liable without evidence of a discharge. This holding is contrary to the regulations which limit liability to a permittee's own discharges. The holding is also contrary to the Clean Water Act because liability only attaches to discharges from a point source. If the 9th Circuit’s holding were to stand it could: (1) impose liability on any owner of an MS4 even when they don't discharge in a way that is shown to have caused or contributed to the problem; and (2) result in additional regulations/liability for municipalities that discharge into commingled systems since the owners of the systems will seek to share/minimize their risk.


Filed April 3, 2013 (Petition-stage brief; SCOTUS)
City of LA v. Lavan
No. 12-1073
Pro Bono Author: Kira Klatchko
Status: Certiorari denied on June 24, 2013

The City of Los Angeles (“City”) conducts regular and scheduled street cleanings pursuant to ordinance § 56.11, which states that “No person shall leave or permit to remain any merchandise, baggage or any article of personal property upon any parkway or sidewalk.” While in many areas of the City, residents no doubt appreciate these sweeps, in the “Skid Row” district where the City’s highest concentration of homeless live, the City’s interest in cleaning and protecting its public ways collides with its homeless residents’ property interests. The City conducts the sweeps to address the excessive proliferation of abandoned personal property on the sidewalks in the Skid Row area. As part of this effort, the City blanketed the area with notices that property left on the sidewalks during these sweeps would be removed and disposed of.

Lavan and eight other homeless people living in the Skid Row district brought suit because on separate occasions between February 6, 2011 and March 17, 2011, during sweeps through Skid Row the City seized and summarily destroyed their personal possessions. Plaintiffs sued the City under 42 U.S.C. § 1983, claiming that the City’s practice of “summarily confiscating and destroying the unabandoned possessions of homeless persons living on Skid Row violated the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution.”

The 9th Circuit held that the plaintiffs continued to have possessory interests in their unabandoned property, and that by seizing and summarily destroying the plaintiffs’ unabandoned legal papers and personal effects, the City caused a “meaningful interference” with their possessory interests in the property.


Filed December 5, 2012 (Petition-stage Brief; SCOTUS)
Senne v. Village of Palatine
No. 12-573
Pro Bono Author: Quin M. Sorenson
Status: Petition Denied June 24, 2013

Like many municipalities, the Village of Palatine prints the intended recipient’s name, address, and other identifying information on a parking citation before affixing that citation to an illegally parked vehicle. According to the plaintiff in this putative class action, Palatine has violated a federal statute by doing so and should be ordered to pay $2,500 in damages for each and every one of the approximately 32,000 parking tickets that it has issued over a four-year period. As a result of the Seventh Circuit’s en banc decision allowing plaintiff’s case to go forward, Palatine now faces the prospect of massive damages—as much as $80 million—for conduct that the plain text of the statute in question expressly deems permissible.


Filed May 16, 2012 (Petition-stage brief; SCOTUS)
Redevelopment Authority of Montgomery v. R&J Holding
No. 11-1234
Pro Bono Author: Robert J. Tribeck
Status: SCOTUS denied cert on June 18, 2012

There is a long drawn-out history to this case, but in short, this a case about the intersection of a number of land use doctrines, including the Williamson doctrine, issue/claim preclusion, and the England reservation. For those familiar with land use law, it goes without saying that these are some of the more controversial issues in land use (for plaintiffs). However, at the end of the day, there needs to be finality to litigation. This case has already taken 15 years and cost the Authority countless dollars. Allowing two bites at the apple will only cost the Authority more time and money. The Supreme Court itself states in cases like these “we apply our normal assumption that the weighty interests in finality and comity trump the interest in giving losing litigants access to an additional appellate tribunal.” San Remo.


Filed February 10, 2012 (petition-stage brief)

City of Hugo v. Buchanan
Pro Bono Authors: Janet Spugnardi & Andrew Messer
Status: SCOTUS denied certiorari

While this case deals with a number of issues like water rights, the issue on appeal is one of standing. The City of Hugo (Oklahoma) entered into an agreement with the City of Irving (Texas) for the sale of water. This agreement was prohibited under Oklahoma law and Hugo was denied a permit to effectuate the agreement by the state water board. Hugo sued, and the lower court ruled that the City of Hugo did not have standing to sue its parent-state (political subdivision standing doctrine). IMLA, Texas Municipal League and Texas Municipal Attorneys Association jointly filed a brief in this case.


Filed February 08, 2012 (petition-stage brief)

Comite de Jornaleros v. City of Redondo Beach READ BRIEF HERE
Pro Bono Author: Scott Howard
Status: The Supreme Court denied certiorari

The City's roadside solicitation law was enacted back in the 1980s because of all the traffic/safety problems associated with day laborers soliciting employment from moving cars. The law was not limited to day laborers, and barred any individual from standing on a street or highway and soliciting, or attempting to solicit employment, business, or contributions from an occupant of any motor vehicle. The definition of street included sidewalks, parkways, medians, alleys and curbs. The Ninth Circuit ruled that the City's solicitation ordinance was unconstitutional in that although it was content neutral, it was not narrowly tailored. The Ninth Circuit decision features one of the harshest dissents we've read. It's worth reading.


Filed January 03, 2012 (petition-stage brief)
Arlington (TX) v. Frame READ BRIEF HERE
Pro Bono Author: David Canupp
Status: Petition was denied.

The cert petition considered the following question: Does Title II of the ADA mandate that sidewalks constitute a "service, program or activity" within the meaning of Title II? This case presents an important issue for municipalities if a plaintiff comes across a cracked sidewalk or broken curb, they do not have to allege (under the 5th Circuit's decision) that they were denied access to any particular program or service of the city. It is IMLA's position that any city has a duty to provide an accessible route to its programs, but the route itself is not a program. To require a locality to fix each and every crack would require a municipality to devote a unbalanced percentage limited fiscal resources to fixing sidewalks.


Filed August 25, 2011 (petition-stage brief)
City of San Leandro v. Int'l Church of the Foursquare Gospel READ BRIEF HERE
Pro Bono Authors: Howard D. Cohen & Michael Sullivan
Status: Petition was denied

This is a RLUIPA (Religious Land Use and Institutionalized Persons Act) case. The petition asked the Supreme Court to resolve: 1. Whether cost and/or inconvenience can be sufficient for a religious landowner to prove that an adverse land use or zoning decision imposes a "substantial burden" under the Free Exercise Clause of the First Amendment and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc(a)(1) (2006); 2. Whether case-by-case analysis of a land use application constitutes an "individualized assessment" under the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §2000cc(a)(2)(C) (2006); 3. Whether neutral, generally applicable planning principles may be a "compelling interest" of local governments under the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §2000cc(a)(1)(A) (2006).


 

State and Federal Appellate Court Cases

Filed ____, 2017 (Ninth Circuit Petition for Rehearing En Banc)
Estate of Lopez v. Gelhaus & County of Sonoma
No.
Pro Bono Author:

Sonoma County Sheriff’s Deputies Gelhaus and Schemmel were patrolling an area of the county known for gang activity in the afternoon. Gelhaus noticed an individual walking on the sidewalk about 100 feet away from them in the opposite direction carrying what he believed to be an AK-47 with the muzzle pointed toward the ground. From that distance, they could not tell his age though they believed he was an older teen. Schemmel drove toward Andy and flipped on his emergency lights and “chirped” the siren and parked about 40 feet from the teen. Gelahus got out and drew his pistol and positioned himself in the V of his open door and knelt on the ground for cover. He yelled loudly at the teen, who had continued walking and was now about 60 feet away, “Drop the gun!” The parties do not dispute that the teen did not drop the gun, and instead started to rotate his body toward the officers while continuing to hold the gun.

Though the parties dispute exactly what happened next, both officers indicated that the weapon was starting to come up as the teen turned toward the officers. Gelahus fired a number of shots and killed the teen. The plaintiffs’ expert disputes that the gun was starting to come up. The total amount of time elapsed from the police car’s “chirp” until the shots were fired was twenty seconds.

The district court denied qualified immunity, concluding that a jury could have found Gelhaus acted unreasonably when viewing the evidence in the light most favorable to the teen. Specifically, the district court concluded that the riffle barrel was beginning to rise, but that at the time Gelhaus shot the teen, the riffle barrel was not at a level that compelled the conclusion that the officers were threatened with imminent harm.

Noting that it grants summary judgment “sparingly” in excessive force cases, particularly where the “only witness other than the officers was killed during the encounter,” the Ninth Circuit upheld the denial of qualified immunity. In so holding, the Ninth Circuit relied on a number of immaterial facts in coming to the conclusion that the teen was not an immediate threat to the officers’ safety and therefore under the Graham factors, qualified immunity was inappropriate. These factual disputes included: 1) whether the teen looked over his shoulder when the officers “chirped” the police siren; 2) how many times Gelhaus shouted to drop the gun (the court accepted there was at least 1 shout); 3) which hand the teen was holding the gun in; and 4) the movement of the teen’s gun. On this last point, the Ninth Circuit noted that it must accept the facts the district court assumed in denying summary judgment, and here the district court made an express factual finding that “the rifle barrel was beginning to rise; and given that it started in a position where it was pointed down at the ground, it could have been raised to a slightly-higher level without posing any threat to the officers.”

The dissent sums up the problem with the majority’s opinion: “The majority opinion exhaustively recounts the facts of the case, but for me, they are largely irrelevant. One critical fact—the upward motion of the fake gun—resolves the qualified immunity issue in Deputy Gelhaus’s favor. …I agree with the majority, therefore, that the precise angle at which Andy pointed the gun is a disputed fact, but as I explain below, that is not material to the qualified immunity analysis.”

The dissent goes on to explain that the majority incorrectly characterized the situation as the teen merely standing on the sidewalk holding a gun that was pointed down on the ground, which is qualitatively different than what the undisputed facts actually showed – i.e., the gun was rising. Finally, the dissent criticizes the majority for creating a “novel rule—that we must accept as true all facts not conclusively disproved by evidence in the record even if those facts have no evidentiary support of their own—”and notes that such a rule “is plainly wrong.”

The issues in this case are: 1) whether the officers violated the deceased’s Fourth Amendment rights by employing deadly force under the circumstances where the teen was turning toward them holding what they reasonably believed was an assault rifle as the gun barrel was starting to rise; and 2) Even if they did, whether the law was clearly established at the time of the events.


 Filed ____, 2017 (Ninth Circuit)

Silva Jr., v. City & County of Honolulu et. al.
No.
Pro Bono Authors: Adam Rosenberg & Dan Lloyd

Around 8 pm police responded to a call about an individual dressed all in black walking down the middle of a busy 6 lane roadway. When they ordered him to move to the sidewalk, he ran away, but continued to remain in the middle of the street, which still had a good amount of traffic on it (though exactly how busy it was is disputed, though likely not material). After trying unsuccessfully to catch him, the officers warned they would use pepper spray. When he did not comply, they utilized pepper spray, which had no effect on him and he continued to run away while remaining in the middle of the busy street. They then warned him they would tase him. One officer tried to tase him, but the individual did not fall to the ground at first. After the third time that the officer deployed his Taser, the suspect fell to the ground.

Eventually the officers subdued him, got his hands behind his back and cuffed him though he continued to resist the entire time. They brought him to the side walk where he lost consciousness. They immediately provided medical care and called paramedics. He was brought to a hospital, but died 12 hours later.

The parties dispute whether the Taser made contact with the deceased. The officers claim that the Taser / barbs never actually made contact with him and that he tripped (which is why he ended up on the ground). The medical examiner also testified that none of the barbs actually made contact with him. The suspect’s estate disputes that fact as does their expert.

The medical examiner indicated that the interaction with the police was a “minimal” cause of death, whereas the illegal drugs (methamphetamine) was a moderate to marked (most severe) cause of death and an enlarged heart was slight to moderate cause of death.

The deceased’s estate brought a Section 1983 claim against the officers for excessive force, claiming that the multiple uses of the pepper spray and the Taser were unreasonable as a matter of law and that they should not be entitled to qualified immunity.

The district court found that disputed material facts about whether the Taser shocked the deceased (and therefore the amount of force used/nature of the intrusion) precluded the officer’s motion for summary judgment and for qualified immunity. The court similarly found that because whether the law is clearly established for the purposes of qualified immunity is a fact specific inquiry, it could not grant the officers qualified immunity with regard to either their use of the pepper spray or Taser when there were disputed facts.

While the exact issue on appeal has not been formulated, the City will likely argue that even assuming the evidence in light most favorable to Plaintiff (that he was Tased and fell to the ground), the Officers acted reasonably. Further, given the fact that decedent was standing in the middle of a busy roadway and evading arrest, the Officers are entitled to qualified immunity because the law was not clearly established at the time of the incident as the other Taser cases are significantly different from the facts in this case.


Filed __, 2017 (Georgia Appellate Court)
Rayonier Performance Fibers, LLC v. Altamaha Riverkeeper, Inc.
No.
Pro Bono Author: Rusi Patel

This case addresses the issues that arise in situations where a body of water is being used for multiple, competing legitimate activities within a designated use category and whether a court should apply a reasonableness standard or a subjective standard in assessing challenges to the issuance of an NPDES permit based on an alleged narrative water quality violation.

Relevant to this case, the Clean Water Act (CWA) established the National Pollutant Discharge Elimination System (NPDES) permitting process to reduce the amount of pollutants discharged into bodies of water. Under this system, pollutants are only allowed if accomplished within the limitations established by lawfully-issued NPDES permits. NPDES permits are issued by the EPA or, if the EPA has delegated authority, through a state-administered program. In Georgia, the EPA has delegated this authority to Georgia’s Environmental Protection Department (EPD). Consistent with the CWA, the EPD enforces its water quality program through the Georgia Water Quality Control Act (WQCA).

In establishing water quality, the Georgia Board of Natural Resources designates all State waters into six separate designated use categories. These categories each contain separate, specific water quality standards that correspond to the body of water’s designated use. As an example, a river that has been designated as “wild” or “scenic” would receive the most stringent level of protection and prohibit any degree of degradation. In contrast, a body of water that supports recreational activities or fishing balances its designated uses with an appropriate water quality criteria designed to protect said uses. Each designated category contains a combination of specific numerical criteria and narrative standards. Narrative standards, the subject of this case, account for the subjective, overall appearance (and in this case smell) of a body of water and are intended to supplement numerical criteria.

This case is the culmination of fifteen years of litigation between a local Georgia environmental group, Altamaha Riverkeeper (ARK), and Rayonier Performance Fibers, LLC (Rayonier). EPD and Rayonier entered a consent order in 2008 requiring Rayonier to implement a Color Reduction Plan and meet progressively more stringent annual color discharge limits.

In February 2015, Rayonier was issued a draft NPDES permit from the EPD. In reviewing the permit, the EPA objected, noting that Rayonier’s discharges would have the potential to cause or contribute to a violation of Georgia’s narrative water quality standards for color, odor, and turbidity. In response to this objection, the EPD added additional requirements that Rayonier would have to undertake to keep its permit, which satisfied EPA’s concerns.

ARK objected to the EPD’s issuance of a permit to Rayonier, alleging that Rayonier did not comply with narrative water quality standards for color, odor, and turbidity (despite the fact the EPA gave its approval for EPD’s additional requirements). The administrative law judge held that because the color and odor of the discharge continued to be noticeable and distinct from the receiving water during low flow conditions, thus interfering with recreational use for certain users offended by the discoloration of the water, Rayonier was in violation of narrative standards. To arrive at this conclusion, the ALJ interpreted the WQCA to say that any interference with legitimate use is a violation of narrative water quality standards.

The Superior Court overturned the ALJ’s decision, instead interpreting the WQCA to allow for reasonable interference with legitimate uses and concluded that the color conditions set in the permit were reasonable and consistent with the need to balance competing uses of the river. Further, the court also noted that despite the evidence of minor interference with the river color during times of low flow, that the affected portion of the river was still used extensively for recreational purposes, indicating that Rayonier’s discharge did not, in fact, prevent recreational users from swimming, paddling, and fishing in the area in violation of narrative water quality standards.

The issue on appeal are whether Georgia’s narrative water quality standard, which prohibits “industrial or other discharges which produce turbidity, color, odor, or other objectionable conditions which interfere with legitimate water uses,” requires that all legitimate uses of the river be protected at all times. In other words, does Georgia’s narrative water quality standard require the EPD to meet the subjective wishes of individual recreational water users rather than balance the needs of both industrial and recreational uses using a reasonableness standard?


Filed October 6, 2017 (Missouri Appellate Court)
Sophian Plaza Association, et. al. v. City of Kansas City
No.
Pro Bono Author: Allen Garner

This case involves the question of whether the city can contract away its police powers indefinitely, binding all future legislative decisions regarding the city’s trash removal.

In 1971, the city enacted an ordinance that provided for the collection of solid waste from all residences except those with 7 or more dwelling units (i.e., apartment buildings and trailer parks). Two groups of apartment building owners sued the city at the time, claiming that ordinance was unconstitutional. During the pendency of the proceedings, the parties settled their lawsuit and filed with the court a stipulation and agreement stating that the city would treat all its residents equally by agreeing to either provide trash collection services to everyone or to provide a cash equivalent to owners of the apartment buildings / trailer parks (the “trash rebate program”). The court incorporated the terms of the stipulation and agreement into its judgment and made the provisions mandatory. The city opted to pay the rebate to these owners and did so for decades, regardless of whether the owners were a part of the original lawsuit.

Beginning in the 1990s and continuing into the early and mid-2000s, the city began studying and analyzing the financial impact of the trash rebate program to the apartment dwelling owners in the system. In 2010, the city opted to terminate the trash rebate program, via an ordinance it adopted, as a means to address the city’s financial circumstances, thereby saving the city approximately 1.4 million dollars per year.

Condo associations brought a class action alleging civil contempt against the city based on its repeal of the trash rebate program.

The district court found that the city knowingly, intentionally, and deliberately chose not to comply with the 1977 court order when it eliminated the trash rebate program. The court further found the stipulation and agreement was a valid and enforceable contract and that the city was in breach of the contract and contempt of court. The court entered a judgment against the city for over $10,000,000 plus over $4,000,000 in attorney’s fees and costs, and 9% interest.

The issues on appeal that IMLA’s brief focused on are: (1) Whether the city can contract away its police powers such as trash collection; and (2) Whether the court order impermissibly bound future legislative decisions.


Filed October 3, 2017 (Eleventh Circuit)
Kondrat’yev v. City of Pensacola
No. 3:16-cv-00195
Pro Bono Author: Michael Buschbacher

In the early 1940’s a cross was erected in a city park. As time passed, the cross remained and amphitheater was constructed around it and some churches began using the area for Easter Sunrise services. The city maintains the cross/property at about $233 per year. The city issued permits for church’s use and one of the Plaintiffs in this case also received a permit for one Easter Sunrise service to host a satanic ritual requiring the long-time church user of the property to move. Four individuals brought suit against the city, claiming the cross offended them and violates the Establishment Clause. The district court found that under the Lemon test, the city had violated the Establishment Clause.

One of the significant issues in the case involves the following issue of standing: do the plaintiffs who were formerly residents, but who are no longer residents have standing? The case also raises the standing question of the “offended observer” in the Establishment Clause context. Another issue raised by the lower court’s decision is the historical underpinnings of the Establishment Clause and whether it was intended to circumscribe state or local governments or instead, to act as a limitation on the federal government to prevent it from creating a governmentally backed religion.


Filed September __, 2017 (Florida District Court of Appeal)
Airbnb v. Miami
No. 15-1485
Pro Bono Author: Frances De La Guardia


Miami’s current zoning ordinance was adopted in October 2009 and has been interpreted to prohibit vacation rentals. Miami’s Planning and Zoning Director has testified that, under the City’s interpretation of the statute, uses must be set forth clearly in the ordinance to be permitted; therefore, because the zoning ordinance does not define terms associated with short-term rentals (i.e. “vacation rental,” “short term rental,” and “dwelling unit”), the ordinance has been interpreted by the City to prohibit them.
Florida has since passed a statute preempting local governments from enacting laws, ordinances, or regulations prohibiting or otherwise regulating vacation rentals (Section 509.032(7)(b) Fla. Stat.). However, the law made an exception for any local laws that were adopted prior to June 1, 2011. Additionally, in 2014, the Florida Attorney General issued an opinion stating that a prior zoning restriction without an explicit ban on vacation rentals could not subsequently be interpreted to restrict vacation rentals.
Airbnb sued the City challenging enforcement of its code relative to short term rentals. Miami argues that its ordinance is grandfathered, since it was enacted in 2009 and properly regulates short-term rentals. The trial court disagreed, coming to the opposite conclusion. Relying on the Florida AG opinion’s emphasis on specific language, the court ignored Miami’s interpretation and held that the ordinance did not regulate short-term rentals since the terms were not included or defined in the 2009 ordinance. The trial court enjoined the City from enforcing its Code provisions. The court also concluded that a zoning ordinance that does not include a reference to a specific use does not regulate that use and it is permitted.


The main issue in this case is whether Miami’s regulation (Miami 21), which relates to inns, bed and breakfasts, and hotels, is preempted from applying to vacation rentals by state law.


Filed August 31, 2017 (N.D.Ill)
City of Chicago v. Sessions
No. 1:17-cv-5720
Pro Bono Author: Laura Tice

The Edward Byrne Memorial Justice Assistance Grant (“Byrne JAG”) provides financial support for local government law enforcement agencies around the country. Through a press release, the Department of Justice announced that it would be imposing new conditions on Byrne JAG grantees, including requiring grantees to: (1) certify compliance with 8 U.S.C. §1373; (2) allow federal officials the access to local government facilities to interrogate arrestees; and (3) provide at least 48 hours’ notice to federal officials prior to an arrestee’s release if immigration authorities have issued a detainer request for that individual.

Chicago brought suit seeking a preliminary injunction against the Attorney General from imposing new conditions to the Byrne JAG. Chicago alleges that the conditions are inconsistent with the limitations imposed by the Constitution’s Spending Clause, the Fourth Amendment and basic separation of powers principles.


Filed August 30, 2017 (Nevada Supreme Court)
Glover v. Cargile & City of North Las Vegas
No. 70-988
Pro Bono Author: Robert Freeman

In this case, a North Las Vegas police officer was responding to an emergency involving an active shooting. On his way to the scene, he made the decision to go through a red light. The intersection had a hill that made it difficult to see all traffic coming through it. It is a disputed fact as to whether the officer had his lights and sirens on. It is undisputed that it was department policy for him to have his lights and sirens on in this situation. He was involved in a crash with someone going through that intersection and that person was injured. It is a disputed fact as to who struck who in the intersection.

NRS 41.032 immunizes municipal agencies and their employees against actions: “[b]ased on the exercise or performance or the failure to exercise or perform discretionary function or duty on the part of the State or any of its agencies or political subdivisions or of any officer, employee or immune contractor of any of these, whether or not the discretion involved is abused.” The Nevada Supreme court has interpreted the statute consistent with federal law, and that court applies discretionary immunity where: (1) the allegedly negligent acts involve elements of judgment or choice; and (2) the judgment or choice made involves social, economic, or political policy considerations.

The injured party sued and the lower court initially denied the City’s motion for summary judgment, but then after a motion for reconsideration, granted the City’s motion. In its decision granting summary judgment, the court concluded that because the officer’s actions involved his individual discretion, and were related to, and in furtherance of, public policy, the officer and the City were entitled to discretionary immunity pursuant to NRS 41.032. Specifically, the court concluded that the officer’s actions were undertaken while responding to an emergency and therefore in furtherance of public policies such as protecting the public / apprehending criminals. Because his actions did not constitute an intentional tort or bad faith, he was afforded discretionary immunity.

The appellant / injured party argues that disputed material facts precluded the entry of summary judgment, including whether the officer had his sirens / lights on and who struck who in the intersection. The appellant also argues that because the officer chose to enter the intersection unsafely (without lights/sirens and knowing it was a blind intersection), he was endangering the public and that the law doesn’t say that the officer gets immunity unless you show bad faith.

The City argued that while the officer’s discretion is not “unfettered,” his conduct as alleged only amounts to negligence or “abuse of discretion” and would still be subject to discretionary immunity even if everything they allege is true. Here, it was undisputed that he was utilizing discretion in driving his vehicle to an emergency in furtherance of public policy.

The issues on appeal are: (1) Did the District Court err when it granted summary judgment in favor of Defendants based on discretionary immunity under NRS 41.032(2) when according to the appellant, the police officer violated his own safety rules and policies in causing a crash?; and (2) Did the District Court err when it concluded that discretionary immunity bars all claims against a police officer so long as they did not commit intentional torts or acted in “bad faith”?


 

Filed August 21, 2017 (Montana Supreme Court)
Basset v. City of Billings
No. OP 17-0322
Pro Bono Author: Todd Hammer

Officer Lamantia was dispatched to a loud party just after midnight. Upon arrival, he observed a young male subject running into a nearby driveway and hopping a retaining wall into a neighboring yard. Lamantia exited his car, yelled for the subject to stop and identified himself as a police officer. When the youth did not stop, Lamantia pursued the individual on foot. In his pursuit, he jumped over the retaining wall, losing his flashlight in the process.

Unbeknownst to Officer Lamantia, Plaintiff Robert Bassett was taking his dog out and was standing in his yard, having just encountered one of the fleeing partygoers cutting across his property. Hoping to dissuade other late night revelers from trying to cut across his property, Bassett moved towards the retaining wall where he had seen a fleeing partygoer. Instead, Bassett encountered Lamantia crouched down, searching for his flashlight in the dark.

Officer Lamantia apparently mistook Bassett for the individual he had been pursuing and tackled Basset to the ground. As soon as he realized Bassett wasn’t a threat, Lamantia released him. As a result of the encounter, Basset suffered a torn rotator cuff and sued Lamantia and the City of Billings under Section 1983. Bassett also alleged a state law claim of negligence against Lamantia. The City has argued that they are shielded under the public duty doctrine.

The case was removed to federal court and summary judgment was granted in favor of the City on both claims. As to the separate negligence claim, the district court also found the public duty doctrine shielded Officer Lamantia from liability. Bassett appealed to the Ninth Circuit. Because this is an issue of first impression in Montana, the Ninth Circuit then submitted the issue via certified question to the Montana Supreme Court.

The issue before the Montana Supreme Court is whether the public duty doctrine applies when the alleged injury arises solely from a law enforcement officer’s individual actions.


Filed June 15, 2017 (Court of Appeals, Ohio)
City of Cleveland v. State of Ohio
No. 16-868008
Pro Bono Author: Joseph Scott

As a part of an initiative to address poverty and income inequality, Cleveland enacted an ordinance requiring residents to perform at least 20% of construction worker hours in every city construction contract of at least $100,000. The ordinance also required contractors and subcontractors to use “significant effort” to ensure that at least 4% of those residents be low-income. The law was never challenged by the contracting community and has since been viewed favorably by city residents.

Thirteen years later in 2016, the Ohio General Assembly sought to preempt Cleveland’s ordinance, characterizing it, among other things, as an impermissible residency requirement. The Ohio law prohibits public authorities from requiring contractors to employ a certain percentage of individuals from the geographic area of the public authority for construction.

Cleveland filed suit, asserting that the preemptive legislation was a violation of Home Rule and arguing that it attempted to take a purely local issue and assert a state interest. The City was successful in the lower court and Ohio has appealed.

This case addresses the issue of home rule and preemption. Specifically, it concerns the question of home rule in Ohio and whether the City of Cleveland is permitted to set its own hiring requirements for its construction contracts.


Filed May 11, 2017 (California Supreme Court)
T-Mobile v. City of San Francisco
No. S238001
Pro Bono Author: Jeffrey Melching

In 2011, San Francisco adopted a personal wireless service facilities ordinance that required service providers to obtain a permit to place their facilities in the right-of-way. The ordinance included several requirements, but the element relevant to this appeal is a provision conditioning a permit for larger equipment on an aesthetic review. T-Mobile and other personal wireless providers challenged that requirement, relying on a state statute, Public Utilities Code Section 7901, which gives telecom providers the ability to place their equipment in the public right-of-way so long as the equipment does not “incommode the public use of the road.” Plaintiffs argue that since aesthetic considerations are not relevant to whether their equipment obstructs travel, the local ordinance is preempted.

The California Court of Appeal held that the state statute did not preempt the local ordinance. The court reasoned the term “incommode” is broad enough to include aesthetic concerns as the term means “to unreasonably subject the public use to inconvenience or discomfort; to unreasonably annoy, molest, embarrass, inconvenience; to unreasonably hinder, impede, or obstruct the public use.”

The issue is whether state law, which grants a statewide franchise to wireless carriers and allows them to install wireless boxes in the public right of way, but prohibits wireless carriers from "incommoding" the public use of the public right-of-way, preempts San Francisco's ability to consider aesthetics when deciding whether to issue a permit to a telecommunications company for its wireless service facilities on poles in the public right-of-way.


Filed ___, 2017 (Georgia Intermediate Court of Appeal)
Stanford v. City of Albany
No. 
Pro Bono Author: Rusi Patel

Deceased, LeSheldon Kernard Stanford, was severely beaten by multiple private individuals, after which he was shot and killed in February 2010 outside a private business, Brick City. Brick City essentially functioned as a nightclub with documented code violations and a reputation for hosting numerous fights, shootings, assaults, illegal sale and distribution of drugs and alcohol and other unlawful activities. Since January 2008, the police had arrested individuals on five occasions and had recovered numerous illegal drugs and weapons from the facility. In July of 2008, Albany’s code enforcement department recommended Brick City’s occupancy license be revoked based on criminal activity known to code and law enforcement. Soon thereafter, however, the Dougherty County District Attorney’s office requested that the City stop the proposed closure proceeding in order to allow a covert criminal investigation to be conducted. 

On the night of the shooting, Stanford attended the venue with several family members. Through the course of the evening, several fights broke out at Brick City, resulting in crowds being disbursed outside the venue. While outside the venue, Stanford was beaten and then shot and killed by private individuals while unarmed. At the time of the shooting, the owners and operators of Brick City, Mr. and Mrs. Loving, did not have a valid licensing authorizing the sale and distribution of alcohol. The venue’s occupant tax certificate was ultimately revoked at an emergency board meeting two days after Stanford’s death.

Stanford’s parents have sought to hold the City of Albany accountable for the actions of the private individuals that caused Stanford’s death by bringing a nuisance claim against the city, citing the city’s refusal to close down the business as a main contributor towards their son’s death. Under Georgia law, municipal corporations can be liable for creating or maintaining “nuisances,” which is broadly defined by statute as a reoccurring condition that causes special damage, hurt, or inconvenience. 

At trial, the jury awarded Stanford’s parents $15.2 million. The City of Albany is being held 70% liable for failing to abate the nuisance caused by Brick City. 

The issue on appeal is whether the City’s inaction with regard to revoking a business’s occupancy tax certificate amounts to the maintenance of a nuisance.


Filed June 28, 2017 & March 23, 2017 (California District Court)
No. 3:17-cv-00485
San Francisco v. Trump
Pro Bono Author: Brett Schuman, Neel Chatterjee, & Brian Burgess
Status: The district court judge entered a nationwide injunction on April 25, 2017 and denied the federal government’s motions to dismiss and for reconsideration on July 20, 2017.

On January 25, 2017, President Trump signed Executive Order 13768: Enhancing Public Safety in the Interior of the United States (the “EO”). The EO provides in pertinent part:

Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373. (a) In furtherance of this policy, the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.

Notably, Sanctuary Jurisdictions are not defined in the EO. 8 U.S.C. 1373 provides that local governments may not prohibit or restrict any government entity or official from “sending to, or receiving from, [federal immigration officials] information regarding the citizenship or immigration status . . . of any individual.”

San Francisco laws limit when city employees and agencies may assist with the enforcement of federal immigration laws. These laws generally prohibit city employees from using city funds or resources to assist in the enforcement of federal immigration law, unless required by federal or state law. They specifically prohibit local law enforcement officers from cooperating with Immigration and Customs Enforcement (“ICE”) detainer requests, which are voluntary, and limit when local law enforcement officers may give ICE advance notice of a person’s release from local jail. (By way of background, ICE detainer requests generally require jurisdictions to hold an individual for up to forty-eight hours excluding weekends and holidays). See 8 C.F.R. § 287.7(d).

San Francisco filed suit seeking declaratory and injunctive relief that the EO and Section 1373 violate the Tenth Amendment and that the federal government should be enjoined from enforcing the unconstitutional aspects of the EO as applied to sanctuary cities.

IMLA submitted an amicus brief focusing on: (1) issues relating to local government autonomy / sovereignty; and (2) the fact that the EO potentially requires local governments to violate the Fourth Amendment by requiring them to hold those suspected of illegal immigration pursuant to ICE detainers for up to forty-eight hours even if they lack probable cause to do so.

The federal district granted San Francisco’s motion for a preliminary injunction, concluding that the Executive Order was likely unconstitutional on a number of grounds. The court noted that: “[t]he Executive Order uses coercive means in an attempt to force states and local jurisdictions to honor civil detainer requests, which are voluntary ‘requests’ precisely because the federal government cannot command states to comply with them under the Tenth Amendment.”

After the Attorney General issued a memorandum interpreting the Executive Order, the federal government filed a motion to dismiss and a motion for reconsideration of the judge’s order and IMLA again filed an amicus brief again supporting the City and the judge denied the federal government’s motion for reconsideration / motion to dismiss.


Filed March 10, 2017 (Commonwealth Court of Pennsylvania)
Williams v. City of Philadelphia
No. 2077 and 2078
Pro Bono Authors: William Leonard & Rigel Farr
Holding: The Court held that the Philadelphia Beverage Tax was not preempted by state or federal law.

Philadelphia seeks to implement its PBT, which was passed in June 2016. The PBT would impose a 1.5 cent tax per fluid ounce by distributors to dealers on the transfer of sugar sweetened beverages (SSBs). PBT states that the tax is imposed only when the “supply, acquisition, delivery or transport is for the purpose of the dealer’s holding out for retail sale within the City the [SSB]. . . .” Generally, distributors are responsible for the payment of the tax to the City; however, if the distributor does not pay, the dealer is responsible for the payment. Consumers are not responsible for the tax (though distributors like Coca Cola may decide to increase prices as a result of the tax). The PBT’s definition of SSB specifically excludes things like baby formula, medical food, milk, and products which contain more than 50% fruit and/or vegetables as well as products that a purchaser can add sugar to at the point of sale.

Plaintiffs, who are retailers and beverage and food associations filed suit, seeking injunctive and declaratory relief to invalidate the law, claiming that it is preempted by state and federal law.

In Pennsylvania, the Sterling Act empowers the City of Philadelphia to levy and assess certain taxes for general revenue purposes under certain restrictions. The district court held that while the purpose of the Sterling Act is to prohibit double-taxation, Philadelphia’s PBT was not preempted by the law simply because a business is taxed on certain aspects of its operations by the Commonwealth’s Sales and Use Tax. Instead, the court noted, the Sterling Act only prohibits a local government from imposing a tax on the same aspects of a business that is also being taxed by the Commonwealth. The district court reasoned that the respective taxes apply to “two different transactions, have two different measures and are paid by different taxpayers,” even though the Sales and Use tax also applies to soft drinks. Notably, the PBT only applies when SSBs are distributed to the dealer, regardless of whether the dealer sells the product to the consumer, whereas the Sales and Use tax is imposed at the retail level and paid by the consumer.

The district court similarly held that the law was not preempted by SNAP (the Supplemental Nutrition Assistance Program) because again, it does not impose a tax on the consumer, but rather on the distributor.

The issue on appeal was whether the City’s law is preempted by the Commonwealth’s Sales and Use tax and/or federal law (SNAP).


Filed February 16, 2017 (Texas Supreme Court)
Pidgeon v. Mayor Turner & City of Houston
No. 14-56421 / 14-56514
Pro Bono Author: Heidi Bloch

The City of Houston offered benefits to same-sex spouses of City employees legally married in other jurisdictions prior to the Supreme Court’s decision in Obergefell v. Hodges (which held that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state).

Private citizens brought suit as taxpayers against the City, seeking to prevent it from doing so. A Texas district court entered an injunction against the City and ordered the City to discontinue the benefits. The City appealed, which stayed the order. While it was on appeal, the Supreme Court decided Obergefell. The City then argued the case was moot in light of the Supreme Court’s decision and the appellate court agreed, reversing the district court’s original decision and remanding it for proceedings consistent with Obergefell.

The case went up to the Texas Supreme Court and the City argued a number of procedural infirmities. Ultimately the Texas Supreme Court denied the petition for review, on jurisdictional grounds. The Texas Supreme Court’s denial for review would have sent the case back to the trial court and ultimately would have resulted in its dismissal. However, the appellants filed a petition for rehearing and a number of amici came in supporting them, including a number of state legislators. The amici argue that Obergefell only held that same-sex couples have a constitutional right to marry, and that it did not invalidate laws that provide more benefits to heterosexual couples. They also argue that Obergefell should not apply retroactively.

The Texas Supreme Court thereafter granted the petition for rehearing.

The issues on appeal are:
1. Should Obergefell be extended narrowly as the appellants claim i.e., does Obergefell extend beyond the state’s requirement to simply issue marriage licenses and thus require employers to offer the same benefits to same-sex couples as are offered to heterosexual couples
2. Does the Supreme Court’s decision in Obergefell retroactively apply to benefits the City of Houston provided to its employees for same-sex spouses married outside of the state?

In addition to the issues related to the applicability of Obergefell, IMLA’s amicus brief argued that this case is important as it relates to local government autonomy. IMLA believes that municipalities are empowered to offer their employees whatever benefits they wish, absent some specific lawful mandate by the State.


Filed February 9, 2017 (Eleventh Circuit)
Ela v. Destefano
No. 16-11548
Pro Bono Authors: John Baker & Sarah Shalf (2017 Amicus Service Award Recipients)
Held: The Eleventh Circuit ruled that the plaintiff was not entitled to $2,500 per violation, but indicated that the decision whether to multiply damages is up to the trial judge.

In this case, an officer in the Orange County Sheriff’s Department, Destefano, accessed personal information about her husband’s ex-wife that the officer accessed via the law enforcement databases.

When she learned of this, the plaintiff sued under DPPA and Section 1983. Destefano admitted to illegally accessing the Plaintiff’s personal information and the jury determined she did so 101 times. Destefano never did anything with the information and did not provide it to any third parties. Thus, the jury also determined that the plaintiff suffered no actual damages from the lookups.

Because the jury found she suffered no actual damages, the plaintiff sought liquidated damages for the violation. DPPA provides that upon a violation a “court may award …actual damages, but not less than liquidated damages in the amount of $2,500.00.” 18 U.S.C. § 2724 (b)(1). Based on this language, the plaintiff sought $2,500 for each of the 101 violations or $252,500 in liquidated damages.

The district court ultimately found that the language was discretionary and the court could fashion a damages award as it saw fit. Thus, the court rejected the plaintiff’s argument for an award of $2,500 per violation. Instead, because Destefano suffered no actual damage, the court ordered an award of $2,500 total and only 10% of the attorney’s fees she sought.

The issue on appeal was whether a plaintiff is entitled to a liquidated damages award of $2,500 per DPPA violation/per lookup.

IMLA’s brief argued that the absence of a reference to a statutory award of liquidated damages “per violation” should preclude a district court from awarding these damages on a per-violation basis.


Filed February 6, 2017 (Fourth Circuit)
No. 16-2325
Baltimore v. Baltimore Centers for Pregnancy
Pro Bono Authors: Jennifer Colyer, Janice Mac Avoy & Andrew Cashmore (2017 Amicus Service Award Recipients)

The issue in this case pertains to the constitutionality of a City of Baltimore ordinance that requires Limited-Service Pregnancy Centers to post a disclaimer in its waiting room alerting potential customers that the LSPC does not provide or make referrals for abortions or certain types of birth control. The LSPC sued the City, claiming that the ordinance infringes on its First Amendment rights.


Filed January 20, 2017 (Eighth Circuit)
No. 16-4059
Gage County v. Dean
Pro Bono Authors: Lanny Richmond (2017 Amicus Service Award Recipient)

This case has a long and convoluted procedural history, including multiple trials and appeals. The remaining issues are therefore relatively narrow and involve the question of whether the County can be held liable for the Sheriff’s action as a final policymaker if the Sheriff himself was found to be not liable of any misconduct by a jury (other non-policy makers were found liable). There is also the issue of whether under Nebraska state law, the Sheriff is properly the final policymaker for the purposes of Monell liability or rather a state actor.
Helen Wilson was raped and murdered in 1985. In 1989, White was convicted of the crime based on testimony and confessions from his five co-conspirators. All six served time in prison. In 2008, DNA evidence exonerated the defendants and their convictions were overturned. The six defendants then brought a Section 1983 claim against the County, Sheriff, the Deputy in charge of investigating the crime, and the police psychologist alleging due process violations. Specifically, they claimed that the investigator fabricated evidence, conducted a reckless investigation and the psychologist and the Deputy coerced confessions. They argued that the County was liable based on the Sheriff’s actions in the investigation as the final policymaker for the County. Other than the Sheriff’s actions, there seems to be no other valid argument supporting county liability as no county official other than the Sheriff and elected prosecutor were involved and one of the issues is whether either the sheriff or prosecutor is a state or county official.
The district court denied the officers’ qualified immunity and the Eighth Circuit upheld that denial in a prior appeal in 2015. The district court originally dismissed all charges against the Sheriff and County, but in that same 2015 opinion, the Eighth Circuit reversed and held that the Sheriff could act as a final policymaker for the County and the jury was left to decide whether the Sheriff’s actions “caused the deprivation of rights at issue by policies which affirmatively command that it occur.”
A jury returned a verdict in favor of the Plaintiffs, awarding significant damages, which could bankrupt the County. Notably, although the Sheriff was sued in his official and individual capacities the jury did not find the Sheriff liable and the court’s verdict sheet did not require the jury to distinguish between individual or official capacity in determining if the Sheriff was liable. Despite not finding the Sheriff liable, the jury nonetheless found the County liable.
IMLA’s amicus brief argued that as a matter of law, a municipality cannot be bound by a final policymaker’s decision if that final policymaker’s actions did not deprive the plaintiffs of any constitutional rights. Here, specifically, the Sheriff was found not liable for any misconduct by the jury, but nonetheless, the jury had the option to still find the County liable and did so. This seems to fly in the face of the concept that respondeat superior liability does not exist in the context of Section 1983 liability.

 


Filed November 28, 2016 (Eighth Circuit)
Josephine Havlak Photographer, Inc v. Village of Twin Oaks
No. 
Pro Bono Author: Helmut Starr

For the last couple of years, Twin Oaks, a small village in St. Louis County, Missouri, has been involved in litigation with a commercial photographer over the regulation of its park vis-à-vis commercial activity and its effect on use of the park by patrons. The photographer’s claim was that the Village’s requirement of a permit and $100 fee violated her First Amendment rights. Recently, after a trial in the United States District Court for the Eastern District of Missouri, the Court found in favor the Village.

The Plaintiff appealed to the Eighth Circuit. The issue on appeal is whether the Town’s regulation requiring commercial photographers to file a permit and submit a fee to use the Town’s park for commercial purposes violates the First Amendment.


Filed November 23, 2016 (Western District of Tennessee)
Thomas v. Schoer
No. 13-cv-2987 
Pro Bono Author: William Brinton

In late 2013, the plaintiff Thomas filed a lawsuit challenging the Tennessee outdoor advertising statute. Shortly after the release of Reed, the district court judge indicated that he believed the Tenn. Highway Beautification Act (HBA) was content-based and subject to strict scrutiny, based on the on-premise off-premise distinctions.

The state was forced to attempt a showing of a compelling governmental interest. An advisory jury trial took place and the advisory jury concluded that the state had cleared its hurdle. The state takes the position that the potential withholding of 10% of its federal funding-for being out of compliance with the federal HBA-is of sufficient concern as to be a compelling government interest, among other arguments offered up.

The plaintiff argues that the federal HBA is unconstitutional for the same reasons as the state act; and that there can be no compelling interest in complying with an unconstitutional federal statute. In addition, the court was under the impression that a provision of the state statute that pertained to types of government signs was a content-based regulation, despite the Walker v. Texas Division of Sons of Confederate Veterans case-decided on the same day as the Reed case-which dealt with that issue. The Walker case made it clear that government speech of the type targeted in Thomas v. Schroer was not subject to First Amendment scrutiny.

The issue in this case is the constitutionality of the core provisions of the Tennessee Highway Beautification Act and the federal Highway Beautification Act. All local authority to regulate billboards could also be deemed unconstitutional. The final decision may be based upon whether the distinction between offsite signs and onsite signs is deemed a content-based distinction. Whether government signs are government speech is also an important issue in this case.


Filed November 23, 2016 (Court of Appeals, Texas)
AusPro Enterprises, LP v. Texas Department of Transportation
No. 03-14-00375 
Pro Bono Author: William Brinton

This case involves the application of Reed v. Town of Gilbert to a state highway beautification act that is modeled on the Federal Act. The facts of the case and involve a company placing an election sign on its property along a State Highway. The Texas Department of Transportation informed the company that its sign was illegal under the State’s Act because all outdoor signs required a permit and although there was an exemption for political signs, they could only be displayed for a certain time-period around an election without a permit.

The Texas Court of Appeals held that the Act’s outdoor advertising regulations are unconstitutional under Reed as content based regulations and struck down the entire sign law’s exemptions. The court rejected the Department’s argument that the constitutional inquiry should be limited to the election sign exemption with the sole remedy being to sever that provision from the Act if that provision was deemed unconstitutional.

Because Texas’ Act mirrors the Federal Act and many other states have modeled their highway beautification acts on the Federal Act, IMLA filed an amicus brief in this case, arguing that the Reed case had nothing to do with commercial speech and therefore, the Texas Court of Appeal’s ruling went too far and should be limited to regulations pertaining to noncommercial speech.


Filed November 17, 2016 (Fourth Circuit)
Siena Corp. v. Mayor and City and County of Rockville
No. 16-1732 
Pro Bono Author: Erek Baron

In this case, Siena sued the City and the individual councilmembers who voted for a zoning text amendment (ZTA), claiming violations of due process, equal protection, and state law claims. Siena had purchased property near an elementary school and obtained site plan approval to build an “EZ-Storage” self-storage facility. In response to concerns voiced by the community, the City Council enacted the ZTA, making a self-storage facility a conditional use, with the condition that it could not be within 250 feet of a school. Siena now was unable to build the self-storage facility. Siena’s essential claim is that the ZTA had no rational basis, the reasons stated were pretextual, and it was targeted at Siena (which is not a member of a protected class). The district court granted the City’s motion to dismiss or, in the alternative, for summary judgment, holding Siena had no vested property right because it never applied for a building permit, and traffic and safety concerns were a rational basis for the ZTA.

The issue on appeal is the constitutionality of the City’s zoning amendment


Filed October 25, 2016 (California Supreme Court)
Leider v. Lewis
No. S232622
Pro Bono Author: Michael Colantuono

The City of Los Angeles operates a municipal zoo and in 2006, the city council voted to build a new $42 million elephant exhibit. Following that decision, the plaintiff, Leider, sued under California Code of Civil Procedure section 526a, which allows a taxpayer to obtain an injunction "restraining and preventing any illegal expenditure of, waste of, or injury to, the ... funds, or other property of a ... city[.]" Leider's goal was to obtain an injunction closing the elephant exhibit. His suit alleged the defendants were engaging in illegal expenditures, waste, and injury to city property by operating the zoo in violation of Penal Code section 596.5, which outlaws abusing elephants in six specified ways, and as relevant to this case, by keeping the elephants in spaces that are allegedly too small and on ground that is too hard.

After a lengthy procedural history including the grant of summary judgment in favor of the City and the Court of Appeal reversing, the plaintiff amended his complaint to allege that the defendants were violating several other animal abuse statutes. The defendants demurred on the ground that Civil Code section 3369 bars the entire action. Civil Code section 3369 provides that injunctive relief cannot be granted "to enforce a penal law, except in the case of nuisance or as otherwise provided by law." The City contended Leider could not state a claim under section 526a for injunctive or declaratory relief because the claims challenged alleged violations of the Penal Code.

Two trial judges ultimately refused to consider the City’s defense under Code 3369, ruling that law of the case precluded the argument. The trial judge found the defendants violated the California Penal Code by failing to provide an adequate exercise area because the elephants were not receiving adequate exercise time by at least 20 minutes per day and the exhibit's substrate was too hard. The court entered injunctions under section 526a that the exhibit's soil be rototilled and the elephants be exercised 2 hours per day.

After upholding the lower court’s ruling on the law of the case issue, the Court of Appeal held that in the alternative, Civil Code section 3369, which prohibits the issuance of an injunction to enforce a penal law does not apply to taxpayer suits. The Court of Appeal therefore concluded that the trial court’s injunctions concerning soil maintenance and exercise time were proper.

The issue before the California Supreme Court is whether a private citizen can seek injunctive relief against a city based on his taxpayer claims of alleged violations of a criminal statute.


Filed October 17, 2016 (New York State Court of Appeals)
Turturro v. City of New York
No. 37657/05
Pro Bono Author: Andrew Orenstein & Bradley Wanner

Held: The court found roadway design to be a propriety function like maintenance (as opposed to a governmental function) and only entitled to a qualified immunity for issues of roadway safety and that the question of whether a municipality is entitled to any immunity is for the jury to determine.

This case involves the question of whether a government may be held liable for failing to prevent a motorist from speeding on a public roadway based on the municipality’s roadway design decisions.

Plaintiff Anthony Turturro was injured when he attempted to bicycle across a four lane roadway, Gerritsen Avenue in Brooklyn, in the middle of the block, and was struck by a speeding car. The driver was going at least fifty-four miles per hour in a thirty-mile per hour zone and ultimately pleaded guilty to a criminal charge of felony reckless assault for his actions. Gerritsen Avenue is a straight, flat, four-lane road that is divided by double-yellow lines.

Turturro and his mother commenced a negligence action against New York City and the driver. The gravamen of his claim against the City is that a wide, straight road such as Gerritsen Avenue invites illegal speeding, despite posted speed limits, and that the City should therefore have implemented certain traffic control measures on Gerritsen Avenue, known as “traffic calming” measures, that tend to reduce the average speed on a roadway.

Prior to the accident, the City had conducted several traffic studies at locations on Gerritsen Avenue, but ultimately determined that additional traffic lights and other speed mitigation measures were not necessary on the street. The City did send several memos to the police requesting enforcement of the speed limit and it installed additional signage as a result of the studies. The City determined that additional speed mitigation measures were not necessary because the studies showed that Gerritsen Avenue had low vehicle volumes and normal speed levels.

The Appellate Division held that the City was liable for failing to implement proper traffic calming measures.


Filed October 6, 2016 (Ninth Circuit Petition for Rehearing En Banc)
Diaz v. City of Anaheim
No. 14-55644

Pro Bono Author: Steven Renick

 Officer Bennallack testified that he was patrolling a gang controlled area of the city and that he saw Diaz, the deceased, with two other people and believed that criminal activity was likely occurring. Officer Bennallack and his partner attempted to converse with the deceased, but Diaz ran from them and as the officers gave chase Diaz acted as if he were holding something in his waistband. According to the officers, Diaz ran into a fenced area despite having other options. As a result, the officers felt Diaz was luring them into a trap. When Diaz finally stopped and turned towards them (ignoring their commands to put his hands in the air, etc.) after having just thrown something over a fence, the officer believed he had a gun and fired. While the officers did not uncover a gun, they found both a cell phone and a meth pipe. The cell phone had many pictures of the deceased holding weapons, with drugs and with money. Further, the deceased had many gang tattoos and exhibited gang signs in pictures on the phone.

After a six-day trial and upon two hours of deliberations, the jury found for the defendants. The court originally concluded that it would not bifurcate the trial and would allow evidence of gang membership in as evidence only for the damage aspect of the trial if the mother denied knowing her son was in a gang. As the trial proceeded, the gang evidence came in and the plaintiffs argued the evidence was prejudicial and further proved why the trial should have been bifurcated. A panel of the Ninth Circuit agreed, concluding that although decisions to bifurcate are usually left to the discretion of the trial judge, here, that discretion was abused.

IMLA filed an amicus brief in support of the petition for rehearing en banc and also in support of the City’s petition for certiorari.

The issues in this case are:

1. In light of this Court’s repeated admonition that appellate courts may not substitute their judgment for that of the district court concerning matters such as severance of issues at trial and admission of evidence given a district court’s superior position to assess the impact of such issues on a jury, may an appellate court find a district court abused its discretion with respect to such issues only where it identifies objective facts demonstrating that the district court acted irrationally, arbitrarily or capriciously in making its ruling?

In light of this Court’s repeated recognition of the principle that jurors are presumed to follow their instructions to disregard particular testimony, given a district court’s superior position to observe the impact of the instructions and evidence on the jury, may an appellate court in a civil case substitute its judgment for that of the district court in assessing whether jurors followed instructions in a particular case and ruling on a motion for a new trial, absent identifying some objective facts showing that the district court’s decision was irrational, arbitrary or capricious?


Filed August 16, 2016 (Court of Appeals, Texas)
Carruth v. City of Plano
No. 05-16-00573-CV
Pro Bono Author: Scott Houston

The issue in this case is whether a comprehensive plan be subject to referendum.

The City of Plano adopted an ordinance which enacts the City’s Comprehensive Plan and repeals the prior comprehensive plan. The City’s process in adopting the Comprehensive Plan included public hearings, the taking of testimony, analysis of demographics and other highly specialized and complex methodological assessment of information, review by the zoning commission, consideration of input provided by thousands of members of the public, and consideration by the city council, as well as many other deliberative and analytical activities. The City’s planning and zoning commission met over eighty times in six years to consider the Comprehensive Plan. The commission constantly made modifications throughout the process, taking public input into account. It did so legislatively, in accordance with state law and its zoning ordinance.

Approximately one month after the ordinance was adopted, thus enacting the Comprehensive Plan, the plaintiffs submitted a petition to the City Secretary. The petition contained 4,000 signatures requesting the Comprehensive Plan be submitted to a city-wide referendum based on the City’s Home Rule Charter purportedly requiring a referendum upon the submission of a petition from the public. The city council determined that the Comprehensive Plan was not subject to a referendum vote.

When the city council did not put the Comprehensive Plan to a vote, the plaintiffs filed suit against the city and city council seeking a declaratory judgment that the ordinance enacting the Comprehensive Plan was invalid as well as a mandamus seeking to compel the city council to submit the Comprehensive Plan to a vote.

IMLA believes that most states limit applicability of referenda to legislative actions while exempting planning actions and in many instances zoning actions as well and joined the Texas Municipal League’s amicus brief in this case.


 

Filed June 27, 2016 (Ninth Circuit, petition for rehearing en banc)
Flores v. San Gabriel
No. 14-56421 / 14-56514
Pro Bono Author: Arthur Hartinger

The City provides a flexible benefits plan to its employees, under which the City provides a certain amount of money to each employee for the purchase of medical, vision, and dental benefits. All employees are required to use a portion of these funds to purchase vision and dental benefits. But an employee may decline to use the remainder of these funds to purchase medical benefits if the employee has proof of alternate coverage (such as through a spouse). If that is the case, the employee may receive the unused portion of the benefits as a cash payment added to the employee’s regular paycheck (“cash-in-lieu” payments). This payment appears as a designated line item on the employee’s paycheck. 

At some time prior to 2003, the City determined that its cash-in-lieu of benefits payments were “benefits” that were excluded from its calculation of a recipient’s regular rate of pay. Thus, these cash-in-lieu payments were not incorporated into the City’s calculations for the purposes of overtime compensation. 

The plaintiffs, police officers with the City, brought suit under the Fair Labor Standards Act, alleging that the failure to include the cash-in-lieu of benefits payments as a part of their regular rate of pay resulted in a lower amount of overtime compensation. The plaintiffs claimed the violation was “willful,” entitling them to a three-year statute of limitations instead of two and also sought liquidated damages. 

The Ninth Circuit ruled that the City must include the cash-in-lieu of benefits payments in the employees’ regular rate of pay for the purposes of determining overtime. Because the City did not do so, the court held that it violated the FLSA. The Court found the cash-in-lieu payments did not fall under the exemption provided in section 207(e)(2) – such as vacation or holiday payments, or payments for travel or other expense reimbursements – and held that it is not necessary for payments to be tied to the actual hours worked or the amount of service provided to be considered compensation for purposes of calculating the regular rate. The court further concluded the payments did not fall within the exclusion under section 207(e)(4) for “contributions irrevocably made by an employer to a trustee or third person pursuant to a bona fide plan for providing … health insurance or similar benefits for employee.” The Court reversed the District Court’s rulings that the statute of limitations was limited to two years, and that the officers were not entitled to liquidated damages. The Ninth Circuit determined that the violation was willful because the City did not proffer any evidence to demonstrate that it had taken affirmative steps to ensure its initial designation of these payments as “benefits” (as opposed to compensation) complied with the FLSA and therefore the City did not act in good-faith. 

The Ninth Circuit ultimately voted to deny the petition for panel rehearing and the City petitioned for certiorari.

The issue is whether cash-in-lieu of benefits payments are properly excluded from the regular rate of pay under the FLSA pursuant to § 207(e)(2) because they are not compensation for hours worked.


Filed June 21, 2016 (Eleventh Circuit)

Walker v. Calhoun

No. 16-10521
Pro Bono Author: Rusi Patel

This case involves a trending issue that creates significant concern for cities and counties around the country. Essentially the ACLU and DOJ describe the issue as “criminalizing poverty” and it arises from the increased use of fines and fees in the justice system. In this case, the issue can be tied to a system found in most states that allows people to pay money as “bail,” which they then forfeit rather than appear in court. The “bail” converts to the fine and court costs excusing the person from showing up for a trial.

In this case, plaintiff Maurice Walker was arrested on Thursday, September 3, 2015, after a police officer found him stumbling on Georgia state road- a five-lane roadway - and determined that plaintiff appeared to be under the influence of alcohol. Plaintiff was placed in custody for a suspected violation of Georgia law, and transported to the county jail for booking and processing.

Immediately following the Labor Day holiday, plaintiff filed a lawsuit on Tuesday, September 8, 2015, claiming his detention without a bail hearing violated his constitutional rights. He was released from custody on his own recognizance on Wednesday, September 9, 2015, by agreement of counsel. It is not clear why a hearing did not take place on Tuesday September 8 and bail considered at that time.

At the time, the secured bail schedule, which was authorized by the Georgia General Assembly, provided a process by which individuals who were still in custody (i.e., had not posted bail yet) would be brought before a municipal court judge within seventy-two hours of their arrest to determine whether the person qualifies as an indigent person (pursuant to federal poverty guidelines). If the person was determined to be indigent, then the person would be released on a recognizance bond. Due to the Labor Day holiday, the plaintiff was incarcerated for longer than seventy-two hours, but that was apparently not a violation of this particular bail schedule. The bail schedule has since been amended to a forty-eight-hour period (however, the City’s argument that the suit is moot as a result of the amendment was rejected).

In his lawsuit, the plaintiff brought a class action, claiming that he was wrongfully detained as a result of the City’s bail practice and in violation of the Due Process and Equal Protection clauses of the Constitution. The district court granted the plaintiff’s motion for a preliminary injunction finding that the plaintiff was likely to succeed on the merits that the City was liable for the bail process.

IMLA’s amicus brief makes it clear that the organization does not condone the practice of jailing individuals based on indigency. And notwithstanding the facts of this case, the issue here is that the bail procedure that was followed by the municipal court is based on state law and the municipality has no control over the procedure. The amicus brief that IMLA joined, drafted by Georgia Municipal Association, addressed the following issues:

(1) Whether the District Court erred in determining that the City of Calhoun possesses considerable control over the Municipal Court of Calhoun, specifically on issues of bail and bond, which are traditionally reserved to the judge and whether the exercise of such powers was derived from municipal policy or by state law; and

(2) Whether a municipality can be held liable under 42 U.S.C. § 1983 for its municipal court having a policy of wrongfully incarcerating indigent defendants when the relevant decisions are made by municipal judges acting in their judicial capacities under direction of state law.

Thus, regardless of the facts of this case and whether the municipal court’s time-frame for holding indigency hearings was constitutional, IMLA believes that the City is not the correct defendant for this lawsuit.


Filed May 26, 2016 (Ninth Circuit, petition for rehearing)
Lowry v. San Diego
No. 13-56141
Pro Bono Author: Steven Renick

The appellant, Lowry, went out after work drinking with her friends. After consuming five vodka drinks, she decided to go back to her office to sleep on the couch there. At approximately 11:00 pm, she got up to use the bathroom and unbeknownst to her, triggered the building’s burglary alarm. Several San Diego police officers responded within minutes to the alarm, including an officer accompanied by a police service dog.

Upon arriving and inspecting the building, the officers noticed that the door leading to Suite 201 was propped open. There were no signs of forced entry and the suite was dark. Because the officers could not see inside the office suite, they did not know if anyone was inside. Before entering the suite where Lowry was sleeping, the police officers loudly gave the warning: “This is the San Diego Police Department! Come out now or I’m sending in a police dog! You may be bitten!” The officers then waited between thirty and sixty seconds and after receiving no reply, repeated the same warning once or twice more. When there was again no response, the officer let the dog off his leash and entered the suite, following closely behind the service dog.

The officers entered the office where Lowry was sleeping. Once there, one of the officers shone his flashlight against the wall and spotted someone under a blanket on the couch. At that moment, the dog jumped on top of Lowry. The two struggled briefly before the officer called the dog back and the dog responded immediately.

After confirming that Lowry was an employee for the office building, the officers drove her to the hospital where she received medical care. As a result of the dog bite, Lowry had a large gash on her lip that required three stitches.

Relevant to this incident, the San Diego Police Department trains its police dogs to enter a building, find a person and bite them and hold the bite until the police officer calls the dog off. The dogs are not trained to differentiate between “a young child asleep or . . . a burglar standing in a kitchen with a butcher knife.” Whether to conduct the search on leash or off leash is generally left to the discretion of the officer, however, the SDPD’s manual provides that residential searches (as opposed to commercial ones) should normally be conducted on leash.

Lowry sued the City of San Diego, alleging that the City’s policy of training the police dogs to “bite and hold” violated her Fourth Amendment rights. The district court granted the City’s motion for summary judgment, finding that the officer did not violate Lowry’s constitutional rights under the Graham analysis.

The Ninth Circuit reversed, holding that a reasonable jury could find that the force used was excessive and because the City conceded that the use of force involved was in conformance with its policy, summary judgment in favor of the City was therefore inappropriate.

In determining whether summary judgment was appropriate, the Ninth Circuit applied the Graham test to the facts in order to determine if there was a constitutional deprivation. In terms of the nature and quality of the intrusion, the Ninth Circuit reasoned that although Lowry’s injuries were relatively minor, the district court erred on this factor by focusing solely on the amount of force used against her. Instead, the Ninth Circuit indicated that the court must look not only at the amount of force, but the type of force used and the potential harm it could cause. Because dog bites can be fatal, the court reasoned that the intrusion on Lowry’s Fourth Amendment rights were severe.

The Ninth Circuit then brushed aside the City’s countervailing interests under Graham, concluding that a jury could find that any belief that Lowry posed an immediate threat to the officers when they released the dog was unjustified. On this point, the Ninth Circuit analyzed the facts from Lowry’s perspective, instead of from the officers’ perspective (a point the dissent emphasizes) – i.e., that she was fast asleep on the couch, did not engage in threatening behavior, or do anything other than lay quietly. In terms of the severity of the crime, the Ninth Circuit concluded that although burglary can be dangerous, it is not an inherently dangerous crime.

Although the district court concluded that the fact that the officers issued a warning weighed in favor of finding the use of force was reasonable, the Ninth Circuit concluded that this factor is accorded little weight because Lowry did not hear these warnings (again looking at the facts from Lowry’s perspective). The Ninth Circuit also concluded that it would have been less intrusive to keep the dog on leash and therefore the fact that the dog was off leash militated against a finding that the force was reasonable.

Turning to the City’s liability, the Ninth Circuit concluded that the City was liable under Monell due to its “bite and hold” policy (which was actually a custom / practice) as that policy was the “moving force” behind Lowry’s injury.

The dissent criticizes the majority opinion for failing to evaluate the facts from the perspective of a reasonable officer on the scene and instead focusing on the facts from Lowry’s perspective. The dissent also notes that the Ninth Circuit has “never held that the use of a police dog is categorically ‘severe’. . .”


Filed April 8th, 2016 (Ninth Circuit Cout of Appeals)
Kirola v. City and County of San Francisco
No. 14-17521
Pro Bono Author: Timothy Coates & Marc Poster

Kirola, a mobility-impaired individual, brought a class action lawsuit against San Francisco, alleging the City discriminates against mobility-impaired persons by failing to eliminate access barriers or ensure accessibility to the City’s libraries, swimming pools, and parks, and to public rights-of-way such as sidewalks, curb ramps, and crosswalks in violation of the ADA and related state civil rights statues. The district court certified the class and the case proceeded to a bench trial.

At trial, the City presented detailed evidence of its comprehensive efforts to ensure that disabled persons have meaningful access to its services and programs consistent with the ADA and state law through both proactive and reactive measures – i.e., undertaking significant accessibility planning across numerous City departments and proactively seeking input from the disability community in the course of such planning, while also responding to requests and complaints from the public through a grievance procedure. In contrast, Kirola testified only to a very limited number of access barriers she encountered within the City including: a limited number of cracked sidewalks or missing curb ramps (that did not necessarily require her to alter her route); encountering step stools in aisles at the public library allegedly impeding her access to the facility; a steep slope at the entrance to a city park, making it difficult for her to enter that particular park; and that some of the city’s pools did not have accessibility features, though she did testify that she regularly swam at multiple city pools, including the one closest to her house.

Following trial, the court held that Kirola lacked constitutional standing to pursue her claims and that her claims lacked substantive merit. Regarding the merits, the court held that the ADA does not require that each particular facility be fully accessible, rather, the court noted, the program/service must be reviewed in its entirety to determine if it is accessible. Here, the few sidewalks and missing curb ramps did not render the entire network of city streets / sidewalks inaccessible to mobility-impaired individuals and the court held that the plaintiff therefore could not show that the class members had been deprived of program access to the city’s public rights-of-way. Similarly, with regard to the city’s libraries, aquatic programs and parks, the court noted that each service needed to be viewed in its entirety and the fact that, for example, three city swimming pools were inaccessible did not render the entire city aquatics program inaccessible where there were six alternative city pools with accessible features.

Kirola has appealed, asserting: (1) she had standing to pursue class claims; (2) she was entitled to injunctive relief because the City departed from ADA guidelines in a few isolated instances when constructing or altering public facilities; and (3) the District Court erred when it determined that San Francisco provides meaningful access to the programs, services and activities offered by its parks, swimming pools, and public rights-of-way when it reviewed those programs in their entirety.

IMLA joined the California League of Cities’ amicus brief that focused solely on the merits and not on the standing issue.



Filed March 28, 2016 (Ninth Circuit)
Hawaii Wildlife Fund et al. v. County of Maui
No.
Pro Bono Author: Shawn Haggerty / Andre Monette

The issue in this case is whether, under the “conduit theory” of liability, the Clean Water Act prohibits the release of pollutants into ground water that eventually migrates to navigable waters.

The Clean Water Act (CWA) does not apply to discharges of groundwater. This case, however, appears to expand the coverage of the Act significantly by using this novel “conduit” theory of liability. Under the conduit theory, according to the district court, any release of pollutants into groundwater that migrates to hydrologically connected navigable waters violates the CWA. This theory has far reaching implications, potentially requiring an National Pollution Discharge Elimination System (“NPDES”) permit for any source – including underground storage tanks, surface impoundments, landfills, and pipelines to name a few – that may release pollutants to groundwater that is hydrologically connected to navigable waters.

In this case, the County of Maui operates a wastewater treatment facility that filters and disinfects the sewage it receives then releases the wastewater into four onsite injection wells. The injection wells are long pipes into which the wastewater is pumped. The wastewater then travels approximately 200 feet underground into a shallow groundwater aquifer beneath the facility. It is undisputed that wastewater from these wells eventually makes its way into the Pacific Ocean and that the County was aware of that fact for some time. Specifically, a 2013 tracer study, conducted on behalf of the EPA, the Army Corps of Engineers and the Hawaii Department of Health, confirmed that treated wastewater from the County’s UIC wells reached the ocean roughly half a mile south of the treatment plant. On average, it took approximately 10 months for groundwater containing County wastewater to enter the ocean along approximately 2 miles of coastline.

The Clean Water Act prohibits the “discharge of any pollutant” unless certain provisions of the Clean Water Act are complied with. See 33 U.S.C. § 1311(a). The Clean Water Act defines “discharge of a pollutant” as “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12). The Clean Water Act defines "point source" as any “discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.” 33 U.S.C. § 1362(14). The Clean Water Act allows discharges of pollutants when an NPDES permit is obtained and complied with. See 33 U.S.C. § 1342.

Citizen groups sued, claiming the County needed a NPDES permit for its injection of treated wastewater into the underground injection control wells. The County did eventually apply for a NPDES permit and sought a stay of the proceedings as a result, but the district court denied that motion for a stay.

On the plaintiffs’ motion for summary judgment, the district court held that the County violated the Clean Water Act based on a novel “conduit” theory of liability – i.e., the treated wastewater reached navigable waters without a NPDES permit. Under the conduit theory the court held that the unconfined groundwater acted as a “conduit,” conveying pollutants from the point source – the permitted UIC wells – to the ocean. The district court explained:

This does not mean that groundwater is always and necessarily itself part of the navigable waters of the United States. See 66 FR 2960-01 at 3017 (“EPA does not argue that the CWA directly regulates ground water quality.”); Definition of "Waters of the United States" Under the Clean Water Act, 79 FR 22188-01, 22218 (Apr. 21, 2014) (“The agencies have never interpreted ‘waters of the United States’ to include groundwater.”). An unpermitted discharge into the groundwater, without more, does not constitute a violation of the Clean Water Act. It is the migration of the pollutant into navigable-in-fact water that brings groundwater under the Clean Water Act.


Filed March 7th, 2016 (North Carolina Supreme Court)
Asheville v. State of North Carolina
No. 391PA15
Pro Bono Author: Allegra Collins

Held: The North Carolina Supreme Court held that the legislation violated the North Carolina Constitution and reversed the intermediate court’s decision upholding the law. The court did not address the takings issue.

Through legislation, North Carolina has empowered municipalities to own and operate public water systems and public sewer systems and to serve customers both inside and outside their corporate limits. In 2013, the state passed legislation that required the city of Asheville to cede ownership and control of its public water system to another political subdivision (the “Transfer Provision”). Though the legislation did not expressly reference Asheville by name, the only public water system which met all of the legislation’s criteria for a forced transfer was the Asheville water system.

Asheville sued the state, challenging the legality of the legislation and the trial court enjoined the legislation, concluding it violated the North Carolina Constitution on three separate grounds, as follows: “(1) the Transfer Provision is a ‘local law’ relating to ‘health’, ‘sanitation,’ and ‘non-navigable streams,’ in violation of Article II, Section 24; (2) the Transfer Provision violates Asheville’s rights under the ‘law of the land” clause found in Article I, Section 19; and (3) the Transfer Provision constitutes an unlawful taking of Asheville’s property without just compensation in violation of Article I, Section 19 and 35.”

The appeals court reversed. The appeals court held that the General Assembly’s power includes the authority to organize and regulate the powers of the State’s municipalities and political subdivisions. On the takings issue, the court reasoned that its holding is consistent with Supreme Court precedent that there is no constitutional prohibition against a state withdrawing from a municipality the authority to own and operate a public water system. For this proposition the Court cited City of Pittsburgh v. Hunter 207 U. S. 161 (1907) and Trenton v. New Jersey 262 U.S. 182 (1923).

IMLA’s brief will argue that the Supreme Court precedent relied on by the appeals court did not extend the takings analysis to property that a local government holds in a proprietary capacity and that such property is protected by the Fifth Amendment and may not be taken without just compensation.


Filed November 20, 2015 (California Court of Appeal)

Lamar Central Outdoor, LLC v. City of Los Angeles
No. BS142238
Pro Bono Author: John Baker

Held: The court concluded that neither the First Amendment nor the California Constitution prohibit Los Angeles' ban on off-site signs, nor did the distinction between "billboards"/off-site signs and on-site signs amounts to an improper content based distinction.

The issues in this case are: (1) whether an ordinance that distinguishes between billboards/off-premise advertising and on premise advertising is content based for the purposes of interpreting the speech clause in the California Constitution; and (2) what level of scrutiny should apply (strict or intermediate).

The facts of this case involve an outdoor advertising company that sued the city of Los Angeles when the city denied its permit applications to convert some of its existing offsite commercial signs to digital signs. The city denied the applications because the city had in place a commercial offsite billboard ban. However, the city exempts ideological, political, and other non-commercial messages from the offsite sign ban. Additionally, the city has authorized certain offsite commercial signs through special-use-district permits and some other commercial offsite signs are authorized because the permits were issued prior to the ban’s enactment. According to the city, the purpose of the ban is to promote public safety and welfare by providing “reasonable protection to the visual environment by controlling the [] location of signs…” and to ensure that the signs will not “interfere with traffic safety or otherwise endanger public safety.”

The billboard company brought suit against the city, claiming the ban is unconstitutional under California’s Constitution. The court concluded that the free speech clause under the California Constitution is broad and provides greater speech protection than the U.S. Constitution. The court held that the ban was unconstitutional under the California Constitution. In so holding, it first concluded that the ban was not content neutral both because it distinguished between commercial and non-commercial speech and because it distinguished between on-site versus off-site locations. The court then held that the ban could not withstand the court’s application of strict scrutiny because the city did not show it was narrowly tailored and necessary to achieve the city’s interest in ensuring traffic safety and preserving visual aesthetics. The court noted that even if intermediate scrutiny applied (which is what the city argued should apply), the ban would still not pass constitutional muster.


Filed October 20, 2015 (Ohio Supreme Court)
Newegg & Crutchfield v. Testa
No.
Pro Bono Author: Eric Cintron

Newegg and Crutchfield are out of state retailers that each sell over $500,000 worth of goods in Ohio annually, but have no other physical presence in Ohio. The Ohio Commercial Activity Tax (CAT) applies to anyone with a “bright-line presence” in the state, which includes anyone with taxable gross receipts of at least $500,000 annually.

The highest body to decide this issue so far is the Ohio Board of Tax Appeals. The case is currently being appealed to the Ohio Supreme Court. Both companies argued that the CAT’s application to them was unconstitutional under Quill v. North Dakota because they did not have a “substantial nexus” to the state. The Tax Board refused to rule on CAT’s constitutionality, finding that it did not have the authority to resolve constitutional challenges and the appellate court would need to do so. The Tax Board then concluded that the CAT did apply to Newegg and Crutchfield per the Ohio Legislature by virtue of their “bright line presence” in the state – i.e., their sale of at least $500,000 annually.

Per Quill v. North Dakota (1992), out-of-state sellers must have a “substantial nexus” i.e. a physical presence in a state to be required to collect a use tax. CAT is viewed by Ohio as a tax on the seller for the privilege of doing business (akin to a corporate income tax or business privilege tax) rather than a transactional sales tax on the buyer. Newegg and Crutchfield argue that Quill’s physical presence requirement should apply to CAT because it operates similar to a use tax.

The issue in this case is whether Ohio’s CAT tax is unconstitutional per Quill?



Filed October 8, 2015 (Oregon Supreme Court)
Johnson v. Gibson
No. 1335087
Pro Bono Author: Thomas McPherson

The plaintiff in this case suffered an injury while running in a public park when she fell into a hole created by an uncovered sprinkler head. The individual defendants, who are employees for the City of Portland, Oregon, were responsible for the hole. The plaintiff filed suit for negligence against the individual defendants. The individual defendants claimed immunity under the Oregon Public Use of Lands Act (the “Act”), which grants immunity to "owners" of land who make their property available to the public for recreational purposes. The plaintiff argued that the defendants were not “owners” under the Act, and in any case, if they were, such a finding would violate the Oregon Constitution’s Remedy Clause.
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The district court held that the individual defendants were "owners" and granted them immunity. The district court also found that the Act, as applied to both public and private landowners, including as applied to the defendant employees, did not violate the Remedy Clause of the Oregon Constitution and dismissed the plaintiff’s claim. The plaintiff appealed to the Ninth Circuit and after briefing on the issues, the Ninth Circuit certified two questions to the Oregon Supreme Court, which is where the case is currently pending.

The issues certified to the Oregon Supreme Court are the following:

(1) Whether individual employees responsible for repairing, maintaining, and operating improvements on City-owned recreational land made available to the public for recreational purposes can each properly be considered an "owner" of land, as that term is defined in the Oregon Public Use of Lands Act, and therefore immune from actions against them for their own negligence?; and

(2) If employees can be considered to be an "owner" under the Public Use of Lands Act, does the Act, as applied to them, nonetheless violate the Remedy Clause of the Oregon Constitution, Art. I, § 10, if by doing so, their statutory immunity eliminates the only remedy that a Plaintiff has for her injuries and a remedy enjoyed under Oregon law as it existed at the time of the drafting of Oregon's Constitution in 1857?



Filed October 7, 2015 (Ninth Circuit)
Kamakeeaina v. City and County of Honolulu, et. al
No. 14-16042
Pro Bono Author: Adam Rosenberg & Dan Lloyd

In this case, the police officers were called to an apartment building for a domestic disturbance and they found the victim lying on the floor bleeding outside the apartment. She and another witness indicated that the assailant was inside the apartment and that he was suicidal and had a knife. The officers entered the apartment with their weapons drawn and found the plaintiff, who was visibly intoxicated on the balcony, where he had barricaded himself.

Although he was intoxicated, he was coherent and he responded to the police officers’ questions throughout the encounter. Other than two brief threats that he would jump from the balcony if the officers drew near, the plaintiff made no other suicidal threats to the officers. The police officers later testified that they believed he made those threats in order to evade arrest. After an hour, the plaintiff surrendered without incident.

The Honolulu police department has a policy requiring that “every arrestee is asked by CRD personnel whether they are sick, injured, taking prescription medication, or have to go to the hospital for any reason.” The officers indicated that they twice asked if the plaintiff required medical attention, but that he did not indicate that he needed any. The plaintiff disputed that they asked him that. The plaintiff did not attempt suicide while in custody and there was no indication that he was denied treatment at any time for any medical needs.

The district court held that the police officers were entitled to summary judgment as the plaintiff could not establish that they had acted with deliberate indifference toward a serious medical need. While the court found that the risk of suicide is a serious medical need, it concluded that the officers were not subjectively deliberately indifferent to that need. The court concluded that the police officers were not subjectively aware that the plaintiff was at a serious risk of suicide because they had attributed his statements that he was going to jump from the balcony as an attempt to evade arrest. The court also concluded that the plaintiff suffered no actual harm by the defendant’s failure to provide him with medical attention.

The issue on appeal is whether the police officers acted with deliberate indifference to the arrestee’s medical needs by failing to provide him with medical attention based on his threats to jump off the apartment’s balcony. IMLA’s amicus brief will argue, among other things, that if the Ninth Circuit overrules the district court, the rule would put an immense burden on law enforcement to essentially diagnose psychological conditions in the field and such a requirement will detract from their primary law enforcement duties.



Filed July 20, 2015 (Third Circuit Court of Appeals)
Bruni v. City of Pittsburgh
No. 15-1755
Pro Bono Author: Erek Barron

At issue in this case is the validity of the City of Pittsburgh’s buffer zone ordinance in light of the Supreme Court’s decision in McCullen v. Coakley. The ordinance in question states:

[n]o person or persons shall knowingly congregate, patrol, picket or demonstrate in a zone extending fifteen (15) feet from any entrance to the hospital and or health care facility. This section shall not apply to police and public safety officers, fire and rescue personnel, or other emergency workers in the course of their official business, or to authorized security personnel employees or agents of the hospital, medical office or clinic engaged in assisting patients and other persons to enter or exit the hospital, medical office, or clinic.

Presently, two “buffer zones” are delineated and enforced in the City of Pittsburgh, both of which are located outside of reproductive health care facilities where abortions are performed.

The plaintiffs in this case regularly engage in anti-abortion activities outside of the buffer zone at a downtown Planned Parenthood. Like the petitioners in McCullen, their advocacy takes the form of “sidewalk counseling,” which means they seek to have “quiet conversations and offer assistance and information to abortion-minded women by providing them pamphlets describing local pregnancy resources…” The City of Pittsburgh reads the Ordinance to prohibit sidewalk counseling, as a form of “picketing” or “demonstrating,” within the demarcated buffer zones.

On a motion for preliminary injunction, the plaintiffs argued that the ordinance was invalid under the First Amendment in light of McCullen. The district court held that the plaintiffs were not likely to succeed on the merits and the plaintiffs are appealing that decision to the Third Circuit.



Filed June 24, 2015 (First Circuit Court of Appeals)
Lopez v. City of Lawrence, et. al
No. 14-1952
Pro Bono Author: Christopher Petrini

This case involves a disparate impact claim of discrimination brought by current and former police officers employed by various Massachusetts cities. The police officers, all Hispanic or African-American, claim that the cities’ reliance on a civil service examination in making promotion decisions to the level of sergeant resulted in a disparate impact on them based on their race or ethnicity in violation of Title VII. The examination was developed by the state.

Because many of the cities and towns being sued did not have a large set of data to review – i.e., not that many candidates applied for the position of sergeant in any given year from a particular municipality, the police officers argued that they should be allowed to aggregate the data across different cities in Massachusetts and that they should also be allowed to aggregate data from different years for the same city in order to make out their claim of a disparate impact discrimination.

At issue in this case is how statistics may be used in a disparate impact case, including whether plaintiffs may aggregate data - either across time or across jurisdictions/employers - in order to prove a prima facie case of discrimination in a disparate impact case.



Filed May 20, 2015 (Tenth Circuit Court of Appeals)
Direct Marketing Association v. Brohl
No. 12-1175
Pro Bono Author: Lisa Soronen & Ron Parsons

Colorado enacted legislation requiring out-of-state merchants to summarize their total annual sales to each Colorado customer and report that information to the Colorado Department of Revenue. Colorado passed this legislation in order to attempt to collect the unpaid taxes that these consumers owed the state, but that as studies have shown, the vast majority fail to pay on their own. The district court held that Quill Corp. v. North Dakota, 504 U.S. 298 (1992) applied to the Colorado legislation and ruled that the state’s notice and reporting requirements were discriminatory and violated the Dormant Commerce Clause.

The question in this case is whether the Dormant Commerce Clause requires not only exempting out-of-state retailers from collecting sales tax on sales to the state’s consumers, but also exempting those out-of-state retailers from providing information necessary for states to enforce and collect sales taxes owed by their residents.



Filed November 13, 2014 (Eleventh Circuit En Banc)
Securities and Exchange Commission v. City of Miami & Bordeaux
No. 14-10363
Pro Bono Author: Jay Solowsky

The SEC instituted a civil enforcement action against the city of Miami and various financial officials, including the Budget Director for the city, alleging that they committed securities fraud through both misrepresentations and omissions in their financial documents. The city and the Budget Director argued that the Budget Director was entitled to qualified immunity as a matter of law because he was acting within the scope of his duties when the alleged misconduct occurred.

The Eleventh Circuit upheld the district court’s denial of qualified immunity for the Budget Director, reasoning that the doctrine of qualified immunity did not bar the SEC’s action seeking civil penalties against the Budget Director (as opposed to where a plaintiff seeks damages).

The Budget Director submitted a motion for rehearing en banc to the full panel for the Eleventh Circuit and IMLA submitted an amicus brief supporting that appeal. The full panel denied the motion for rehearing and the Budget Director petitioned the Supreme Court for certiorari. IMLA also submitted an amicus brief in support of the petition for certiorari.


 Filed May 15, 2015 (Tennessee Supreme Court)

Metropolitan Government of Nashville v. The Board of Zoning Appeals
No. 12910II
Pro Bono Author: Travis Hawkins

Held: The Tennessee Supreme Court held that Nashville had standing to challenge the board of zoning appeals’ decision because the city could be “aggrieved” by the actions of the zoning board.

The Tennessee Supreme Court will decide whether a municipal government has standing to seek certiorari of its own board of zoning appeals decision.

In this case, a company that builds and manages billboards applied for permits to convert two static billboards to digital billboards. The zoning administrator denied the applications and the company thereafter appealed to the Board of Zoning Appeals (BZA), which reversed the zoning administrator’s decision and granted the permits. Nashville filed a petition for writ of certiorari to the trial court, seeking review of the BZA decision and the trial court dismissed the petition on the grounds that Nashville did not have standing to bring the proceeding.

The Court of Appeals of Tennessee reversed the trial court’s determination, finding that Nashville did have standing to seek certiorari of the BZA because Nashville was an aggrieved party due to the fact that the BZA’s decision interferes with its ability to fulfill its obligations under the local zoning code. The Court of Appeals also rejected the company’s argument that Nashville could not sue its own BZA because it would be in effect suing itself.


Filed May 27, 2015 (Tennessee Supreme Court)

The Tennessean v. Metropolitan Government of Nashville
No. M2014–00524
Pro Bono Author: Devin Lyon

The issue in this case is whether a newspaper is entitled to everything a criminal defendant would get through the criminal discovery process pursuant to a request to access public records.

Pursuant to the Tennessee Public Records Act (TPRA), various media outlets requested access to records accumulated and maintained by the Nashville police department in the course of its investigation and prosecution of an alleged rape at Vanderbilt University. The police department refused the request due to the fact that the investigation and prosecution were ongoing. The media outlets sued claiming they were entitled to the records under the TPRA.

The city argued that the records were exempt from disclosure under the TPRA due to a rule of criminal procedure which does not authorize discovery of documents made by law enforcement in connection with an ongoing investigation. The appeals court agreed, concluding that in light of the pending investigation and prosecution, access to the records under the TPRA was not required.


Filed September 28, 2015 (California Supreme Court)

Ardon v. City of Los Angeles
No. S223876
Pro Bono Author: Kira L. Klatchko

In this case, an attorney involved in adverse litigation with the city made a public records request as a part of that litigation. As part of a larger response to that public records request, a city employee inadvertently disclosed three records that were protected from disclosure by the attorney-client privilege and/or attorney work product doctrine. The city employee who disclosed the records was not the holder of either privilege and the respective holders of the privileges had not authorized the employee to disclose the records, or delegated to the employee authority to decide whether to waive the privileges.

The Court of Appeal, relied on a general provision in the Public Records Act that a public entity may not pick and choose who has access to public records and concluded that the disclosure of the records waived the privilege.

The issue in this case is whether inadvertent disclosure of privileged documents waives the attorney-client privilege and the work product doctrine if the disclosure is made pursuant to the Public Records Act as opposed to a discovery request.


Filed July 29, 2015 (California Supreme Court)

Lynch v. California Coastal Commission
No. S221980
Pro Bono Author: Jennifer Henning

The issue in this case is whether landowners can irrevocably commit to non-fee permit conditions in writing, but then later renege and claim that they only agreed to the conditions under protest or duress.

This case arises from two beachfront homeowners’ attempt to challenge certain coastal development permit conditions. The homeowners own bluff-top homes in Encinitas, California. Each property has a fairly flat area that is developed and then a steep bluff face that cascades down to the ocean. The homeowners sought to remove their then-existing shoreline protection and build a new 100-foot long, 29 foot high seawall and to rebuild the lower portion of a private access stairway that tied into the seawall. While their permits were pending, much of the existing seawall and stairway collapsed during a storm. The California Coastal Commission (CCC) approved a permit amendment to allow demolition and reconstruction of the seawall, however, as a part of the permit, the CCC implemented various special conditions, including the preclusion of the reconstruction of the lower section of the stairway and the CCC limited the duration of the permit itself to 20 years. The CCC argued that the special conditions were necessary given the uncertainty about how rapidly the sea level will rise. Both homeowners signed a Notice of Intent to Issue a Permit and in so signing, they agreed to all of the conditions in the permit, including the special conditions. The homeowners then recorded the deed restrictions after signing them and proceeded to file a writ of mandate in superior court challenging the special permit conditions.

The Court of Appeal found that the homeowners had waived their right to challenge the permit conditions when they signed and recorded the deed restrictions, thereby signifying their agreement to those permit conditions.


Filed April 13, 2015 (Texas Supreme Court)

City of Dallas v. Albert, et. al
No. 13-0940
Pro Bono Author: Eric Farrar

Status: The Texas Supreme Court denied the motion for rehearing.

The questions presented to the Texas Supreme Court in this case are: (1) Whether multiple, unrelated documents and ordinances drafted and enacted at different times and for different purposes can be pieced together to create a written binding contract; (2) whether the city intended to create a contract by enacting or adopting these multiple documents alleged to be a contract; and (3) whether multiple documents and ordinances alleged to be a written contract contain the essential terms necessary to form a contract.

In this case, former police officers and firefighters brought suit against the city of Dallas, claiming it breached its contract with them regarding pay increases they claim were due to them. In the 1970s, the city enacted an ordinance regarding a salary increase for police officers and firefighters. It was ambiguous about whether the ordinance was intended to be a one-time salary adjustment or to apply to all future salary increases. The employees argued that the ordinance became a non-negotiable written term in each of their contracts with the city and that the city breached its contract to them by failing to provide regular salary increases in accordance with the terms of the ordinance.

The Court of Appeals for the Fifth District of Texas at Dallas found that a contract existed between the city and these employees. In order to find a contract, the court combined the ordinance in question, other ordinances, various referenda, the city charter, and city code, all of which were drafted and adopted at different times for different purposes. The court held that a contract exists if it is in writing, states the essential terms of the agreement, provides for goods or services to the local government entity and is properly executed on behalf of the local government entity. The Court of Appeals found all these factors existed here. The Supreme Court of Texas denied the city’s request to hear the case on appeal. The city of Dallas is submitting a motion to the Texas Supreme Court for rehearing and IMLA will submit an amicus brief in support of that motion.


Filed January 12, 2015 (Illinois Supreme Court)

Heaton v. Quinn
No. 118585
Pro Bono Author: Timothy Bishop

This case concerns the Illinois legislature’s effort to reform the State’s public pension obligations. The Illinois Constitution contains a pension protection clause, providing that “any pension or retirement system of the State…shall not be diminished or impaired.” As a result of the State’s dire financial situation, the legislature made modest reductions to the State’s public employee pension obligations. The statute making those changes was struck down by the lower court and that decision was appealed to the Illinois Supreme Court. The issue before the Illinois Supreme Court is whether the statute making modifying the pension protection clause is constitutional. The Illinois Supreme Court held that it was not constitutional given the state constitution’s pension protection clause.


Filed November 28, 2014 (State of New York Court of Appeals)
City of Buffalo v. Margerum
No. CA 12-01540
Pro Bono Author: Prathima Reddy
Held: New York’s State Human Rights Statute parallels Title VII and the Supreme Court’s holding in Ricci v. Destefano applies to municipal employer’s voluntary compliance efforts.

This case is an important test case for municipalities because it represents the first decision that has directly applied “strong basis in evidence” standard for disparate impacts, established in Ricci v. Destefano, to a municipal employer’s voluntary efforts to comply with the requirements of Title VII.

Many years ago, Buffalo was sued by the Department of Justice regarding its minority hiring practices in its police and fire departments. Buffalo lost, and an injunction was issued prohibiting the City from discriminating against minority and female applicants and workers. The order also required the City to set certain diversity goals for each minority and for females to balance its public safety workforce.

Around the turn of the century, African American firefighters filed a class action suit asserting that tests the City used unfairly affected their ability for promotion in a discriminatory manner. As part of the litigation, the City hired a consultant who concluded that the City’s tests were not race neutral. Faced with the impeding litigation, and fearful that they would be subject to disparate impact liability, the City took certain race conscious actions to correct their previously misguided personnel selection procedures and to rectify what they believed was discrimination against minority firefighters.

One such action was to disregard the results of certain promotional examinations by terminating the promotion list. In doing so, the City relied on Ricci v. Destefano, a 2009 Supreme Court case, in which IMLA also participated as amicus. Ricci permits an employer to disregard the results of a personnel selection procedure that favors one racial group over another, so long as there is a “strong basis in evidence” to conclude that a disparate impact exists. In turn, a group of white firefighters sued asserting that the termination of the test affected an equal protection violation and the lower court and the intermediate appellate court agreed.


Filed November 24, 2014 (DC Circuit Court of Appeals)
Heller v. District of Columbia
No. 14-7071
Pro Bono Author: Larry Rosenfeld

The District of Columbia has, over the last several decades, passed some of the most restrictive gun laws in the nation. In 2008, the Supreme Court struck down the District’s handgun in District of Columbia v. Heller (Heller I), 554 U.S. 570 (2008), concluding that the Second Amendment protected handgun possession for self-defense in the home. After Heller I, the District responded by enacting a law that banned assault weapons and large-capacity magazines but merely imposed registration requirements for handguns and long guns.

This appeal involves the Second Amendment challenges that remained after the D.C. Circuit, in Heller II, reversed the dismissal of several challenges to the District’s gun registration requirements. On remand, the District of Columbia developed the record through four expert witnesses, and the plaintiffs presented one. The district court carefully analyzed the nature of proof necessary for the District to meet its burden under intermediate scrutiny and explained that the District need not prove “definitively that the challenged regulations will actually further its important interests”; that deference is owed its predictions about the effect of the gun regulations; and that the District need only show that its restrictions “reflect reasonable inferences based on substantial evidence.” The court also explained that the District could rely on more than empirical evidence, including the training and experience of law enforcement, anecdotes, history, consensus, and simple common sense. The court then reviewed, and upheld, challenges to various aspects of the gun registration, including long-gun registration, firearms safety training, and one-gun-a-month limit.

The issue on appeal is whether the challenged firearm registration requirements in D.C. Code § 7-2501.01 et seq. violate the Second Amendment to the United States Constitution.


Filed August 29, 2014 (Sixth Circuit Court of Appeals)
Tree of Life v. City of Upper Arlington
No. 14-3469
Pro Bono Author: Phillip Hartman

Tree of Life, a church, wanted to buy property to build a school in an area of the city zoned for commercial use. The commercial zone does not allow schools (public or private / secular or non-secular) as the city’s plan is to maximize commercial revenues within this zone. Tree of Life, after having been cautioned that the use of the building for a school was not permitted bought a large building with the intent to convert the building to a school. Consistent with its zoning ordinance, the city refused to allow Tree of Life to build a school in the commercial zone.

Tree of Life brought suit in district court claiming the city’s decision violated the Religious Land Use and Institutionalized Persons Act (RLUIPA). The city’s decision was upheld by the lower court, which opined that the comparator for RLUIPA analysis should be other schools, not any institutional use such as daycare facilities, and therefore, because the city would not allow either secular or non-secular schools in the zone, the city did not violate RLUIPA. Tree of Life appealed to the Sixth Circuit, arguing that the district court failed to apply the proper standard under RLUIPA when it held that the only valid comparator to a religious school was a secular school.


Filed June 14, 2013 (Fourth Circuit)
Sandlands v. County of Horry
No. 13-1134
Pro Bono Author: Scott Duboff
Held: On December 3, 2013 the 4th Circuit upheld a lower court decision finding that Horry County’s flow control ordinance did not violate the Commerce Clause.

This was a solid waste flow control case in the vein of United Haulers Assn., Inc. v. Oneida-Herkimer Solid Waste Management Authority, 550 U.S. 330 (2007). In United Haulers, the Supreme Court held that flow control ordinances, which benefit a public entity and do not favor local private interests over other private interests, do not offend the Commerce Clause.

In 2009, Horry County passed an ordinance that required all municipal solid waste (MSW) and construction and demolition (C&D) debris to be processed within the county and disposed of in a landfill owned and operated by a public corporation created by the County. Private haulers could collect the waste, but it had to be processed inside the county and recyclable materials removed before the MSW and C&D were disposed of, exclusively, in the County landfill. Private haulers who wished to compete were required to set up a transfer station where the recyclables could be separated inside the County. Plaintiffs, who operated a landfill just outside the county, objected to the requirement to process the waste inside Horry County and claimed that the Horry County solid waste stream was contemplated when the plaintiffs’ landfill was permitted by the State.

Plaintiffs challenged the ordinance on a number of grounds, both State and Federal, including violations of the dormant commerce clause, equal protection, unlawful delegation of police powers, contracts clause violations, inverse condemnation, substantive due process, denial of vested rights, preemption, interference with contractual relations and South Carolina UTPA violations. The district court certified the question of whether the State’s Solid Waste Management Act preempted the County’s ordinance, including the power to designate where the waste was to be processed and disposed of. The district court also held in favor of the County on the federal issues and this appeal followed.


Filed April 24, 2013 (Petition for rehearing en banc - 7th Circuit)
Hall v. City of Chicago
No. 11-3279
Pro Bono Author: Patrick Rocks
Status: Petition Denied

Anna Hall was a female plumber working for the City of Chicago in a department in which all other nonsupport staff employees were male. In her complaint, she claims that her supervisor created a hostile work environment under Title VII. Hall argues that because she was female, her supervisor assigned her menial work, prohibited her coworkers from interacting with her, and subjected her to verbal violence. The district court granted summary judgment after concluding her supervisor’s conduct was not hostile particularly in comparison to other employees’ responsibilities. It also concluded that Hall failed to produce evidence that Johnson’s conduct was because of her sex. The Seventh Circuit reversed the district court’s findings, concluding that a jury could infer her supervisor’s deliberate isolation of her was sufficiently pervasive to constitute a hostile work environment and that her gender played a part in his actions.


Filed February 7, 2013 (Court of Criminal Appeals of Texas)
Texas v. Cooper
No. PD-001-13
Pro Bono Author: Heather Mahurin
Held: The Texas Court of Criminal Appeals held that the appellee was entitled to notice of violations of a municipal code before his subsequent violations of the code could result in convictions.

Jay Cooper was charged and convicted with failing to maintain his home in good repair, in violation of the City of Plano’s Code of Ordinances. These convictions were appealed and reversed on appeal for failure to state a cognizable offense. The Fifth District Court of Appeals held that the City’s code does not create a separate and distinct offense for the violation of a substantive provision of the International Property Maintenance Code (“IPMC”). The Court reasoned that the City failed to properly charge Mr. Cooper with the IPMC violation, and that the City’s code does not constitute a separate and distinct offense for the violation of a substantive provision of the IPMC. In doing so the court ignored the intent of the Plano City Council. As a result, municipalities in Texas faced uncertainty when prosecuting code violations and enforcing model codes.


Filed August 23, 2011 (Texas Supreme Court)
Dallas v. Stewart READ BRIEF HERE
Pro Bono Author: Marianne Landers Banks

This is an interesting case. Steward bought a house and abandoned it in 1991. For over 10 years, the house was a common stop for code enforcement officials, for vagrants, and for complaints by neighbors. One neighbor even testified that an old tree had fallen from Stewart's lot onto her causing $8,000 worth of damage and threatened to do $30,000 more. In September 2001, ten years after Stewart abandoned the house, the Dallas Urban Rehabilitation Standards Board, a thirty member administrative body, met to decide whether Stewart's house was a nuisance that should be abated. Eventually, the Board voted in favor of demolishing the home. Shortly after, a code inspector when to Stewart's home and found that she had not repaired the property. The City obtained a demolition warrant. Stewart appealed the Board's decision to district court, but the district court upheld the Board's decision. The property was demolished. Shortly after, Stewart brought an action, in part, including a due process and unconstitutional takings claim. The court ruled in favor of Stewart, saying that despite all the notice and opportunity to repair her home, she was entitled to a de novo review of her claims in court, rather than a determination by the administrative board and a affirmance under a substantial evidence standard by the reviewing court.